Janajagrithi Samithi And Ors vs Union Of India & Ors

Writ Petitions No. 21439/2005 (GM-POL-PIL), W.P. No. 5588/2008 (GM-RES-PIL), W.P. No. 11095/2007 (GM-RES-PIL) and W.P. No. 2180/2007 (GM-RES-PIL) were initially filed before the High Court of Karnataka but were later transferred to the National Green Tribunal, Southern Zone Bench at Chennai in terms of the orders passed by the Hon'ble Supreme Court dated 09.08.2012 in Bhopal Gas Peedith Mahila Udyog Sangathan & Ors. Vs. Union of India & Ors: Civil Appeal Nos. 3187-3188 of 1988.1 After transfer the Writ Petitions were registered as O.A. No. 26/2013 (SZ), O.A. No. 27/2013 (SZ) and O.A. No. 28/2013 (SZ), respectively. These cases again got transferred to the Principal Bench of the Tribunal where they got registered as OA No. 578/2018, O.A. No. 579/2018 and O.A. no. 580/2018.

Also, Writ Petition No. 22933 filed before the Karnataka High got first registered as Appeal No. 51 of 2012 after transfer to the National Green Tribunal, Southern Zone at Chennai after its transfer to the Principal Bench of the Tribunal which later got registered as Appeal No. 176/2018.

In aforesaid O.As, the Applicant has assailed the grant of Environmental Clearance dated 20.03.1997 and its extension permitted vide order dated 16.04.2002 issued by the Ministry of Forest, Environment and Climate Change (MoEF&CC), the Respondent No.1, in favour of the Respondent No. 5, the Project Proponent, M/s. Udupi Power Corporation Ltd., which was formerly M/s. Nagarjuna Power Corporation Ltd. (NPCL). Also challenged is MoEF&CC letter dated 31.01.2005 by which letter dated 05.10.2004 cancelling the EC dated 20.03.1997 was superseded, holding that the EC dated 20.03.1997 continued to be valid.

In Appeal No. 176/2018, the Appellant has specifically assailed Environmental Clearance dated 01.09.2011 in respect of the same project referred to by the parties as "Final Comprehensive Environment Clearance" and also termed as "amended Environmental Clearance (EC)" granted by the Ministry of Environment, Forest & Climate Change (MoEF&CC), Respondent No. 1.

In Appeal No. 86/2017 (SZ), the very same Appellant in Appeal No. 176/2018 and the Applicant in the Original Applications have assailed Environmental Clearance (EC) dated 01.08.2017 issued by the MoEF&CC, Respondent No. 1, in favour of the Respondent No. 5, M/s. Udupi Power Corporation Ltd., for expansion of the existing 2x600 MW thermal power plant (Phase-I) by addition of 2x800 MW (Phase-II) at Padubidri Industrial Area in village Yellur which are subject matters of other proceedings referred to above.

For convenience, we may first deal with the Original Applications being O.As No. 578/2018, 579/2018 and 580/2018 together as common questions have been raised in assailing the setting up of 1000 MW thermal power project in Yellur, Karnataka by the Respondent No. 5 on the strength of the Environmental Clearance dated 20.03.1997.

We may observe that although we are dealing with the Original Applications and the Appeals in three segments I, II and III in the manner that will follow, there will be overlapping of facts in the findings as issues raised relate to the same thermal power project and the periodical enhancements of its capacity. While deciding Appeal No. 176/2018, much of the questions raised in the Original Applications have been dealt with in order to avoid repetition.

I. O.A. Nos. 578/2018, 579/2018 and 580/2018

The petitioner is a registered Society under the provisions of Societies Registration Act and its members comprise of residents of Nandikur, Yellur, Santhur, Palimar, Padebettu, Nadsal and other neighbouring villages in the District of Udupi, Karnataka. The Committee has been campaigning for the cause of protection of environment and raising concerns arising out of establishment of highly polluting and large scale industries in the region as well as the threat caused by such activities to the environmentally sensitive Western Ghats and the imperative need for its protection and conservation.

The primary cause agitated by the Applicant is the manner in which the MoEF&CC had granted Environment Clearance (EC) to the Respondent No. 5, M/s Nagarjuna Power Corporation Ltd., for a 1000 MW coal based power station near Padubidri presently in the Udupi, Karnataka, on 20.03.1997.

Shorn of the details and facts unnecessary for disposal of the cases and briefly stated, the case of the Applicants and the Appellants is that initially M/s. Nagarjuna Fertilizer and Chemicals Ltd. (NFCL) had proposed a 2 MT/annum capacity steel production industry with a captive power generation plant of 1000 MW at the same site in Mangalore Taluk as per Government order dated 15.11.1995, which later was permitted to be shifted to Yellur, Santhur, Padebetu and Thenka villages in the year 1995-1996 by the Karnataka Industrial Areas Development Board (KIADB). It is alleged that the 5th Respondent power project, is neither location-specific nor load-specific nor environmental friendly which is in violation of the new IPP policy dated 08.01.2001 to which the said respondent was subject to.

The Respondent No. 3, Karnataka State Pollution Control Board (KSPCB), granted clearance on 19.03.1996 based on a Regional Environment Impact Assessment (REIA) for the site and, the fact that the clearance was granted without making reference to any date or the name of the agency which had carried out the studies, raised serious doubts on the very existence of the REIA in respective of Yellur and the neighbouring villages. It is alleged that Yellur village had never been a part of approved location of the two other thermal power projects proposed by NTPC and Cogentrix and, therefore, Part-I of the letter granting clearance which states that it is located within such area for which KSPCB, Government of Karnataka and the Government of India had cleared the project earlier, was incorrect and misleading. No Cumulative Impact Study had been undertaken for the combined requirement of 50,000 tonnes of coal estimated to be used in the various power projects proposed in the area.

The conditions imposed in the Environmental Clearance granted by the MoEF&CC was inadequate for protection of the interest of the people of the region. Specific mention in this regard has been made to conditions no. 1, 2, 3, 4, 5 and 10. Even then the conditions so prescribed have not been complied with.

It is contended that the details of the project, particularly the plant emissions, its impacts and measures of mitigation, have not been disclosed to the public. The Rapid Environmental Impact Assessment (REIA), which KSPCB claimed to have been carried out by the proponents prior to the clearance by KSPCB on 19.03.1996, had not been put up for public debate in public interest as required under the EIA Notification nor was a public hearing held. Also, no opportunity was given for filing representation as provided under Section 29 of the now defunct Electric (Supply) Act, 1948.

It is alleged that the Respondent No. 5 plant would pose serious threat to the Western Ghats which is considered to be ecologically sensitive and to the rivers and estuaries, would impact the Arabian Sea which is rich in aquatic resources, underground aquifers, endanger agriculture, crops and vegetation, would be hazardous to human health, etc.

It is then stated that as the Environmental Impact Assessment Notification, 1994 issued by the MoEF&CC under the provisions of Environment (Protection) Act, 1986 as amended, specifies that "the clearance granted shall be valid for a period of five years from commencement of the construction or operation of the project", the clearance issued in this case to the 5th Respondent on 20.03.1997 lost its validly on 19.03.2002 as no construction work had started within the stipulated period of five years. In the circumstances, the 5th Respondent ought to have obtained fresh Environmental Clearance before proceeding with the project. It was revealed only on 08.06.2005 in their submission to NEAA that the 1st Respondent had granted two years' extension of the Clearance on 16.04.2002 regarding which the 1st respondent remained silent in their letter dated 01.02.2005 for unknown reasons. The original Environmental Clearance having lapsed on 19.03.2002, the extension granted on 16.04.2002 was wholly illegal and non-est.

It is stated that in view of the change in law on 10.04.1997 making it mandatory to hold public hearing before grant of such a Clearance, it was incumbent upon the 1st Respondent to have insisted upon the 5th Respondent to file a fresh application for the purpose. However, by exercising a non-existent power, the 1st Respondent has extended favour to the 5th Respondent. It is submitted that even if such power is assumed to exist, the 1st Respondent, could have granted the extension only if the requirements of the law as it existed on the day of grant of extension were fully complied with. As the mandatory public hearing was admittedly not held, the grant of extension was totally illegal and violative of the provisions of the Environment (Protection) Act, 1986.

After grant of the approval by the 1st Respondent in the year 1997, there were several changes in the proposed scheme including the change of location, sources of water, proposal to put up desalination plant, etc. Considering this, the fact that requirement of mandatory public hearing had not been satisfied and in view of the amendments to the applicable laws, the MoEF&CC should have directed the project proponent to apply afresh for the Clearance.

It is emphasized that shifting of the project location to the present site from the one earlier identified at Tokur, Bykampadi and other villages in Mangalore Taluk for which REIA had been conducted rendered the Environmental Clearance unsustainable in law. It is stated that the project of the 5th Respondent has been located at a place different from the one permitted in the Environmental Clearance and quite different from the one for which EIA study had been conducted. It is asserted while the EIA study mentions the site as Nandikur, Environmental Clearance mentions it as Padubidri and the project is actually located at Yellur. Various documents have been referred to substantiate this submission of which some of them are (i) REIA's study submitted by KSPCB in 1996 indicating the location as near Nandikur village situated around the approximate coordinate of latitude 130 8' 54" N and longitude 750 48' 8.5" E with the site has been located near Padubidri about 37km N from Mangalore city; (ii) The pre-feasibility report dated January, 1996 indicating the same facts, Vicinity Plan 1996 showing Nandikur as project site; (iii) Environmental Clearance dated 20.03.1997 indicating project being at Padubidri near Mangalore; (iv) Consent to Establish dated 31.08.2005 by which Consent to Establish has been granted to the Respondent No. 5 at Yellur and Santhur villages in Udupi Taluk.

It is thus contended that the 5th Respondent had shifted the plant location illegally to Yellur which had earlier been identified as sensitive by the MoEF&CC. It is further urged that as the validity of the Environmental Clearance dated 20.03.1997 issued under the EIA Notification, 1994 which was for five years had expired, and during which period the 5th Respondent had not commenced with the construction activity. the MoEF&CC, vide order dated 05.10.2004, cancelled the Environmental Clearance directing the Respondent No. 5 to submit application for fresh Environmental Clearance. However, by a personal communication dated 31.01.2005, a Director of the Ministry declared that the Environmental Clearance dated 20.03.1997 continued to be valid which according to the Applicant was patently illegal and contrary to the EIA Notification. The Respondent ought to have applied afresh for clearance and subjected to fresh appraisal based on public hearing and scientifically prepared reports considering the environmental setting obtaining in the year 2004.

Based on the aforesaid principal facts and circumstance, the Applicant has prayed inter alia for directions upon the Respondent Nos. 1 & 2 to carry out an independent study on the carrying capacity on the environment of the Dakshina Kannada region and Udupi Districts and to quash the letter dated 31.01.2005 of the MoEF&CC reviving the Environmental Clearance dated 20.03.1997.

It is of relevance to note that the Applicant had filed an amended O.A. inserting some more facts pursuant to the leave granted by the Tribunal vide order dated 06.03.2017 in addition to the facts that have already been dealt with which are as follows:

i. The transmission lines for evacuation of power from Yellur to the main grid at Hassan through the Western Ghats which would consume large tracts of dense forest, was neither economical nor environmental friendly but was ecologically disastrous. The REIA study also does not assess and quantify the effects of the transmission lines or that of the Captive Coal Jetty being built at the NMPT.

ii. It is stated that the power line component of the project would consume 429.21 acres of forest in the Western Ghats region.

iii. The Environmental Clearance for a Captive Coal Jetty actually related to Deep Draft Multipurpose berth at NMPT which is already in operation since 14.02.2006. This was in contravention to Condition No. III A) ii) which stipulated that the industry shall obtain separate clearance for the dedicated Jetty at NMPT for unloading of coal which the Respondent No. 5 had undertaken to comply. Therefore, there is no Environmental Clearance obtained by the said Respondent for the dedicated Jetty.

It is stated that fly-ash generated by the thermal power plants contain substances which are naturally radioactive and coal ash is more radioactive than nuclear waste. Nuclear radiation emitted by thermal power plants is more than what is emitted by nuclear power plants. This aspect has not been studied before the grant of the Environmental Clearance when the deleterious effects of fly-ash, coal ash and nuclear radiation from thermal power plants have been duly considered by the Tribunal in Appeal No. 7/11(T), wherein vide order dated 20.09.2011 directions had been issued upon the MoEF&CC to look into the long term impacts caused by nuclear radiation from the thermal power plants by undertaking scientific long-term study.

The MoEF&CC, Respondent No. 1, had filed its Statement of Objections on 10.01.2006 before the High Court of Karnataka in W.P. No. 21439/2005 (GM-POL) when it was pending there and no further affidavit was filed after it was transferred to the Tribunal.

It is contended on behalf of the Ministry that the applicant had earlier challenged the setting up of a 2420 MW thermal power project and ash pond by the National Thermal Power Corporation at Nandikur, Yellur, Nitte, Kanthavara, Inna, Palimaru and other villages by filing W.P. Nos. 1112/1991 and 24197/1990, which were dismissed on 06.08.1991. Again W.P. No. 28651/1996 was filed by the Applicant challenging setting up of 1000 MW power plant by Mangalore Power Company. In both the Writ Petitions, the Applicant had raised the very same issues as raised in the present application. According to the MoEF&CC, although the High Court held that none of the objections raised was sufficient to quash the clearance granted to the Mangalore Power Company, a direction was issued requiring the MoEF&CC to take into consideration the reports of DANIDA and NEERI as well as the views expressed by one Mr. Sagaradhara on the 1000 MW thermal power project at Nandikur, Dakshina Kannada District, Karnataka and to complete the exercise within a period of three months from 29.08.1997. In due compliance of the directions, the reports of the DANIDA and NEERI were examined and the report of Mr. Sagaradhara on the power project was also looked into. The MoEF&CC also considered undertaking a carrying capacity studies. It was only thereafter that the Ministry came to the conclusion that adequate steps had been taken to ensure environmental protection by stipulating necessary protection measures for minimising environmental impact due to the propose power project. A compliance affidavit had accordingly beeny filed to that effect before the High Court. The earlier power project with 2420 MW proposed in Nandikur village was later bifurcated into two, i.e., one in favour of Cogentrix of USA and the other in favour of Respondent No. 5. Proposal for 1000 MW Coal Based Thermal Power Project was submitted by the Respondent No. 5 in June, 1996 with all necessary documents including a Rapid Environmental Impact Assessment and Environmental Management Plan. The Expert Committee for Environmental Impact Assessment of thermal power project after consideration of the proposal, recommended the project for clearance in October, 1996, which was followed by grant of Environmental Clearance on 20.03.1997 with specific conditions. It is stated that the power project does not fall within the Coastal Regulation Zone. It is contended that the application is hit by the principles of res judicata and, that Yellur, according to the provisional site clearance issued by the State PCB, has been directed not to be used as ash pond area.

On the extension of EC granted, the Ministry contends that as the inspection reports submitted by Dr. Harapanahalli, Director of the Regional Office, MoEF&CC at Bangalore, had indicated that construction had come up at the project site during the validity of the EC before March, 2004 which was based upon documentary evidence in the form of permission from the Karnataka Industrial Areas Development Board (KIADB), work orders issued to the contractor and the bill raised by the contractor, the EC dated 20.03.1997 remained valid.

Responding to the Applicant's assertion regarding the want of public hearing, it has been stated that such requirement became mandatory only after 10.04.1997 and, therefore, did not apply to the project in question.

Against the question raised as regards carrying capacity, it is sated that as a study conducted by the Department of Ecology and Environment, Government of Karnataka and DANIDA, Denmark reflected the need for integrated management of natural, human and economic resources in the Dakshina Kannada District, Karnataka, the Ministry had written to the Government of Karnataka in September, 1996 to conduct carrying capacity studies of the Dakshina Kannada District, Karnataka as early as possible to assess potential for future industrial growth in the region. The impact analysis for the project had been done based on the REIA study, undertaken by the project authorities and under the EIA Notification, 1994. This, according to the Ministry, was adequate for consideration of the project from the environmental angle.

In order to control emission of sulphur dioxide, etc., by burning of coal, the Karnataka State PCB has laid down several conditions like provision of chimney with adequate height, FGD to control sulphur dioxide, to limit the particles less than 150 mg/Nm3 using Electrostatic Precipitator, use of Low NoX burner to control NoX and other gaseous emission. The measures prescribed would ensure restriction of pollution load within the prescribed limits and, therefore, would not have adverse impacts on the Western Ghats which are 40-50 kms from the project site.

The utilization of the fly ash being a part of the Environmental Management Plan, the project authorities have been directed to ensure 100% utilization of fly ash by the end of 10th year as stipulated in the EC. Adequate measures have also been prescribed for avoiding contamination of ground water directing ash pond area to be lined by impervious liners. The treated effluent is discharged at a designated outfall point into the Arabian Sea off the shore. Thus eliminating the possibility of contamination of ground water in the estuarine region. Desalination plant would be installed to meet the required water for the plant. The intake and outfall points would be in accordance with the advice of the National Institute of Oceanography, Goa/CWPRS, Pune, who has been assigned the task of designing diffuser system for ensuring proper dispersed of the effluents with minimum impact on marine life.

It is emphasised that the 1000 MW Coal Based Power Project was thus examined from the environmental angle and clearance was accorded stipulating a number of safeguard measures further contending that the comprehensive EIA studies which was in the process of preparation, would be examined by the Ministry for stipulating additional conditions.

In its reply the Respondent No. 5, M/s. Udupi Power Corporation Ltd., substituted vide order dated 21.03.2013 in M.A. No. 203A/2013, while dealing with the substantive part of the allegations, it has been stated that there is no change in the location of the project as alleged by the Applicant and the allegation is, in fact, misconceived. In the 1996 REIA report, the location of the project has been shown as "near Nandikur" and not "in Nandikur".

Nandikur is a large area and one single coordinate of Nandikur was given as the place locator close to which the plant was to come up. At the relevant point of time, there was no system or guidelines requiring furnishing of coordinates of the plant boundaries and only one coordinate of the location near to which the plant was to come up was required to be given. The REIA report specifies that the KIADB had identified the land for the project in Padubidri Industrial Area covering the land in villages of Nandikur, Palimar, Inna, Tenka and Yellur and further, that the plot of land identified for the project site falls in that area and, therefore, the location of the project covering village Yellur had been submitted for Environmental Clearance.

It is contended that although the requirement of land in the REIA report of 1996 for the project was shown as 1359 acres, Environmental Clearance was granted in 1997 for 550 ha which is equivalent to 1539 acres. This was reduced to 590 acres that included 420.25 acres of the main plant area and the rest for ash ponds and pipeline corridor. The 5th Respondent is not a site specific project as contemplated under para 2 (II) of the EIA Notification, 1994 category of which only would require site specific clearances. Thermal power plants are covered by para III of the Environmental Clearance which contemplates "project clearance" and not "site clearance" as would be evident from para 5 of the Explanatory Note Regarding Impact Assessment Notification dated 27.01.1994. A 6 km radius study from the project site was thus undertaken for study of buffer zone and 25 km study to predict the air quality concentration on the Western Ghats apart from carrying out a Modelling study to predict the impact of the project and Ground Level Concentration (GLC) in predominant wind directions which is a method accepted even today. The EIA study had been conducted keeping these factors in view.

Letter dated 05.10.2004 revoking the Environmental Clearance led to a representation dated 20.10.2004 being submitted by the Respondent No. 5 to the MoEF&CC for reconsideration and review of the decision conveyed vide letter dated 05.10.2004 which then resulted in the MoEF&CC deputing their Regional Officer for a site visit. As a consequence of a Site Inspection Report dated 06.12.2004 pursuant to such site visit, request for withdrawal of the letter dated 05.10.2004 cancelling the EC was submitted which was followed by the several letters to the same effect.

It is contended that the letter dated 05.10.2004 withdrawing the Environmental Clearance was issued in ignorance of the fact that construction activity at the site had already been taken up in 2003 and, therefore, question of the validity of the Environmental Clearance having expired did not arise. In consideration of this, the MoEF&CC had issued the impugned letter dated 31.01.2005 conveying that the Environmental Clearance granted to the Respondent No. 5 project continued to be valid.

It is urged that as a consequence of letter dated 31.01.2005, the project has progressed to a considerable extent after investment of more than ₹6,288/- crores as on 31.03.2016. Commercial operation began on 11.11.2010 with the first unit of the project being synchronized to the grid followed by the second on 19.08.2012. A "Comprehensive Environment Clearance" dated 01.09.2011 merging all Environmental Clearances granted from 20.03.1997 to 01.09.2011 has also been granted. So far as the matter relating to the transmission lines is concerned, it is stated that it was a subject matter of Appeal No. 10/2012 before this Tribunal which has since been disposed of on 07.03.2012. As regards the question raised in respect of the Coal Jetty is concerned, it is contended that firstly, it is not a part of present proceedings and secondly, the Environmental Clearance granted for the Coal Jetty has not been challenged in the present proceedings and is also barred by the law of limitation.

Against the question raised with regard to carrying capacity of the area having not been undertaken before the Environmental Clearance was granted, it is contended that it was for the Government to do so and the Respondent No. 5 could not be faulted if such study had not been undertaken. The EIA Notification, according to the Respondent, does not stipulate requirement of Carrying Capacity Study. On the question raised in respect of radiation activity in the coal and ash, it is stated that there is no standard prescribed therefor by the prescribed statutory authorities. However, periodical analysis for radioactivity in coal and fly-ash are being carried through BARC Bombay laboratory.

From the assimilation of facts stated in the affidavits filed by the Respondent No. 5, the Project Proponent, we find that objections have also been taken on the question of limitation contending that the orders being challenged by the Applicants dates as far as in the years 1995, 1996, 2004 and 2005. The Respondent contends that Writ Petitions filed by the Applicant in the High Court, more particularly W.P. No. 1112/1991 and connected petitions challenging the Clearances granted by the MoEF&CC earlier, had been dismissed. The present project is a part of 2000 MW super thermal power station proposed at Yellur, Nittur, Nandikur and other villages which had been cleared by the MoEF&CC on 06.09.1991, and the same had been challenged earlier in W.P. No. 1112/1991 and other connected petitions but, as stated earlier, had been dismissed. It is stated that half of the project had been awarded to Mangalore Power Company (Cogentrix) and other half to the Respondent No. 5. Both projects had been cleared but the one granted in favour of the Cogentrix had been challenged in W.P. No. 790/1997 which, however, was later dismissed with a direction upon the MoEF&CC to re-examine the matter taking into account reports prepared by experts from DANIDA and NEERI as well as the views expressed by one expert, Mr. Sagaradhara. The MoEF&CC had accordingly re-examined the project which led the High Court to conclude that the Clearances, were in order. While Cogentrix withdrew from its portion of the project, the Respondent No. 5 had carried forward its portion. Against 2420 MW power plant, only 1015 MW power plant was being setup by the Respondent No. 5. The Clearances were granted to the project by the MoEF&CC and the KSPCB only after detailed studies. A Rapid Environment Impact Assessment (REIA) involving site data collection of one season (3 months) was undertaken to collect the baseline data along with the studies on anticipated emission by the proposed plant bringing within its ambit the emissions of other plants/projects in the vicinity. The report includes consideration of the area, its topography, land usage, socio-economic factors, etc. These were analysed by the State PCB, and finally examined by the MoEF&CC before the Environmental Clearance was granted.

It is further stated that while taking up the project, due care had been taken with regard to ecological fragility of the area in the light of the CRZ, likely emissions due to discharge of solid waste or gaseous matters or contamination of air and water. Specific conditions have been imposed to deal with these aspects in the Environmental Clearance. The authorities have also taken due note regarding the utilization of coal and emission of sulphur content. It is stated that the coal being utilized would be imported and, therefore, contamination would be limited and the emission would be controlled by installing suitable devices and meteorological control system setup to monitor emissions discharged into the air and water. Precautions have been taken to deal with the fly ash disposal by setting up a separate yard and for its utilization by adopting suitable methods. Carrying Capacity Study having not been undertaken by itself would not amount to such a grave infirmity so as to nullify the Clearances. Environmental Impact Assessment for the present project was carried out in the year 2003 and the location of the site has been clearly shown as Yellur, Tenka, Padubidri and Santur. It would be evident from the REIA of 1996 that the EIA studies were undertaken in respect of the project site in due compliance of the provisions of the EIA Notification dated 27.01.1994 and the Environment (Protection) Act, 1986. It is also stated that clause (x) of the Environmental Clearance dated 20.03.1997 prescribes the manner in which the fly ash generated by the Respondent No. 5 would be utilized for which a period of 10 years has been provided.

Pressing the O.As it was argued by the Learned Counsel for the Applicants that the limitation provisions contained in the National Green Tribunal Act, 2010 will not apply to the present application and the respondents cannot non suit the applicants by claiming so as the present matters has been transferred from the High Court by consent of parties. It is emphasized that the original clearance granted on 20.03.1997 had been cancelled on 05.10.2004 but was illegally reinstated on 31.01.2005. While the Original Applications seek to assail the environmental clearance dated 20.03.1997 as amended, in Appeal No. 176/2018, the final Comprehensive Clearance issued to the respondent is under challenge, all of which are pending consideration before this Tribunal.

The primary contentions which the Learned Counsel has sought to raise is the illegal shifting of the project location details of which have already been discussed earlier and, therefore, need not be repeated. However, it was seriously contended that by the shifting the Respondent has established the power plant at Yellur which had been earlier rejected even for setting up of an ash pond as the area was considered to be very fertile and supporting various crops and, the discharge of saline mist from the cooling tower and discharge from the stacks had caused destruction to the region adversely affecting the health of the people and the livestock.

In support of the aforesaid contentions, Learned Counsel referred to the REIA study of 1996, the prefeasibility of January, 1996, the Vicinity Plan of 1996, application dated 20.02.1996 for Site Clearance by the KSPCB, Site Clearance dated 19.03.1996 by KSPCB, Site Clearance issued to Mangalore Power Company dated 25.07.1995, application dated 20.06.1996 for Environmental Clearance submitted by the project proponent, Environmental Clearance dated 20.03.1997, etc.

It is contended that the 5th Respondent has illegally, without permission, without any impact assessment studies and appraisal whatsoever, has shifted the plant location illegally to Yellur which happens to be a site recognised by the MoEF&CC to be sensitive where locating even an ash pond was held to be unacceptable.

It is also submitted that the thermal power plant could not have been permitted by the Ministry in the Yellur village and even the clearance specifically mentions the location as Padubidri. Therefore, the 5th Respondent had made itself liable for the offence punishable under Section 15 of the Environment (Protection) Act.

It is then contended that the Environmental Clearance dated 20.03.1997 issued under the EIA Notification, 1994 was valid for a period of 5 years. The 5th Respondent having failed to commence or to take up construction activity during the period of validity resulted in the MoEF&CC cancelling the EC vide order dated 5.10.2004 directing the project proponent to obtain a fresh clearance. However, by a personal communication of a Director of the Ministry dated 31.01.2005 illegally declared that the Environmental Clearance dated 20.03.1997 continued to be valid.

In support of the above submissions the Learned Counsel referred inter alia to Environmental Clearance dated 20.03.1997, order of the MoEF&CC dated 16.04.2002, order no. J-13011/23/ 96-IA.II(T) dated 05.10.2004, letters dated 20.11.2003, 22.03.2004 and 19.05.2004 from Nagarjuna Power Corporation Ltd. to the MoEF&CC, letter dated 31.01.2005 from Dr. Indrani Chandrashekhar, Director, MoEF&CC to Shri K.S. Balachandrashekharan, Site Inspection Report dated 06.12.2004 of the Additional Director (S) of the MoEF&CC, letter dated 02.02.2005 of the 5th Respondent to the Secretary Vellur Grama Panchayat, letter dated 12.11.2004 from the project proponent to the SP, Udupi District, letter dated 17.12.2004 from KIADB to the project proponent and possession certificate dated 15.12.2004 issued by KIADB.

It is contended that as the project proponent did not commence with the project activity within the validity of the clearance, the MOEF&CC had correctly cancelled the clearance after validating it once. The contention of the project proponent that they had constructed site office was patently false and was based on evidence that were fabricated.

It is further submitted that the reinstatement of the Environmental Clearance was patently illegal and contrary to the EIA Notification. Further, as the present project had been cleared without a public hearing, the order cancelling the Environmental Clearance dated 05.10.2004 was justified also on that ground. The EC having thusbeen cancelled, the project proponent ought to have applied afresh for clearance and, undergone a proper public hearing and an appraisal of the impact of the project based on scientifically prepared reports taking into consideration the existing environmental setting as in 2004.

In his reply, the learned Senior Counsel appearing for the Respondents, at the outset raised preliminary objections on the ground of limitation, delay, laches and constructive res judicata. It is submitted that under Section 11 (1) of the National Environment Appellate Authority Act, 1997, an appeal against Environmental Clearance is required to be challenged within 30 days. However, Appeal against the EC dated 20.03.1997 was filed before the National Environment Appellate Authority only on 28.04.2005 which, however, was dismissed vide order dated 13.06.2005. Similarly, the challenge to the extension dated 16.04.2002 is also barred by time. According to him, this Tribunal being a successor to the National Environment Appellate Authority, it would not be permissible for Tribunal to sit in judgment over the decision of a coordinate Court and, therefore, the Application was barred by the principles of constructive res judicata. It was argued that under Section 38(5) of the National Green Tribunal Act, 2010, all the cases filed and pending before the National Environment Appellate Authority on establishment of Green Tribunal alone stood transferred and not matters which the National Environment Appellate Authority had already dismissed.

It is urged that under Section 11(1) of the National Appellate Authority Act, 1997, an appeal against Environment Clearance requires to be challenged within 30 days. However, it was only on 28.04.2005 that the Applicant challenged the Environment Clearance dated 20.03.1997.

The challenge to NOC issued by the State PCB on 19.03.1996 and the Consent for Establishment dated 31.03.2005 are also barred by laches as well as limitation both being appealable orders under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 and Section 28 of the The Water (Prevention and Control of Pollution) Act, 1974. The challenge to amendment of Environmental Clearance dated 09.09.2009 in Appeal No. 176 of 2018, apart from being barred by time under Section 16 of the NGT Act, 2010, is also an order passed prior to 18.10.2010, i.e., before the National Green Tribunal Act, 2010 came into force.

It is submitted that in the garb of challenging the Environmental Clearance dated 01.09.2011, the Applicant has attempted to indirectly challenge the Environmental Clearance dated 20.03.1997 which, according to the Learned Counsel, is not permitted.

On the question of the alleged illegal shifting, the learned Senior Counsel reiterated that in the Rapid Environment Impact Assessment, 1996 (REIA study) there is a single coordinate which is a place locator of the plant considered as centre of the project. The study area includes Yellur village. Air modelling studies have been made for the core zone of 6 kms, buffer zone of 25 kms and for 50 km x 50 km to assess the impact on Western Ghats. Padubidri is not a revenue village but an industrial area notified by the KIADB which brought within its sweep several acres of land in different survey numbers. The MoEF&CC while granting the Clearance did not find significant difference in the coordinates as would appear from their letter dated 09.01.2009. Referring to the map of the entire area, it is submitted that the present plant boundary is less than 600 meters from the said single coordinate.

On the question of revalidation of expired Clearance, it is submitted that the letter of cancellation of Environmental Clearance dated 05.10.2004 was issued without carrying out a site inspection which would be evident from the letter dated 20.11.2003 which actually refers to there being construction works on the project such as site office, construction of road, etc.

Adverting to the questions raised with regards to public hearing, it is submitted that public hearing was made only mandatory vide Notification dated 10.04.1997 whereas the EC in question pre-dates this having been issued on 20.03.1997. Referring to the EAC meetings held in January to April, 2009, it is submitted that it has been clearly recorded in the minutes that "the Committee considered the proposal in terms of para 7(ii) of the EIA Notification, 2006 for due diligence. It was stated that the project is located in notified industrial area and hence it is exempt from public hearing."

On the Carrying Capacity Study, it is submitted that Government of Karnataka vide order dated 03.12.1999, taking note of the EIA Notification providing for public hearing, on 10.04.1997, withdrew the condition in the Government order dated 29.12.1995.

Since the arguments were confined to the above questions, we need not deal with the other aspects which would not be relevant in the present circumstances for disposal of the case.

We have heard the Learned Counsel for the parties and considered the pleadings and the documents on record. Writ Petition No. 21439/2005 (GM-POL-PIL), renumbered presently as O.A. 578/2018, was filed in High Court of Karnataka on 09.09.2005 inter alia challenging Environment Clearance (EC) dated 20.03.1997 and the Site Clearance dated 09.03.1996. Vide order dated 14.03.2007, interim order was passed by the High Court directing that all further action taken by the Project Proponents during the pendency of the Writ Petition would be subject to the result of the Writ Petition. In the Writ Petition, the Applicant has prayed for quashing of the EC dated 20.03.1997, for direction upon the MoEF&CC and the State of Karnataka to carry out an independent study in the Dakshina Kannada region and Udupi Districts, to declare the Western Ghats as an ecologically sensitive area and to carry out comprehensive Environment Impact Assessment (EIA) and for holding public hearing.

Writ Petition No. 2180/2007 (GM-RES-PIL) was filed before the High Court of Karnataka on 06.02.2007, by two churches situated in Santhur and Pilar (Mudaragandi) villages questioning the Consent for Establishment granted to the project by the Karnataka State Pollution Control Board (KSPCB) for location of dumping in the two villages overlooking existence of religious places, dense forestlands and valuable drinking water sources. The grounds assailing the project are essentially the same as ones in W.P. No. 21439/2005 (now, O.A. NO. 578/2018 (SZ)), the principal being that the project site being located at Yellur and ash dumping at Santhur. The prayer sought for in the Writ Petition is also to declare the Consent for Establishment dated 13.08.0015 as being illegal. That Writ Petition also came to be transferred and taken on record of the NGT, SZ at Chennai on 10.07.2013 and thereafter before the Principal Bench where it was registered as O.A. No. 579/2018.

W.P. No. 11095/2007 (PL) was filed by and on behalf of nine temples situated in the Udupi District, Karnataka challenging the very same thermal power project on identical grounds as in W.P. No. 2180/2007 (GM-RES-PIL) in respect of location of the project at Yellur and ash dumping in Santhur on various grounds. This Writ Petition came to be transferred to the Tribunal and taken on its records vide order dated 10.07.2013 before being transferred to the Principal Bench in New Delhi where it was registered as O.A. No. 580/2018.

The records reveal that O.A. Nos. 579/2018, 580/2018 and Appeal No. 176/2018 were being taken up together with O.A. No. 578/2018 and heard analogously together with effect from 11.10.2013 and have been continuing to proceed in that manner since then by common orders.

The facts and circumstances in the O.As give rise to issues which are dealt with in the manner that follows hereafter:

i. Are the cases barred by law of limitation?

Referring to the opening observations of this judgement it is evident that O.A. No. 578/2018 is traced to O.A. No. 26/2013 (SZ) (THC) registered by NGT, SZ, Chennai after the case was received by transfer from the High Court of Karnataka vide order dated 30.11.2012. The transferred case was originally W.P. No. 21439/2005 (GM-POL-PIL) which inter alia seeks for quashing the communication of the Director of the MoEF&CC dated 31.01.2005 revalidating the Environmental Clearance dated 20.03.1997 as well as Consent for Establishment dated 31.08.2005.

As it appears from the above, O.A. Nos. 578/2018, 579/2018, 580/2018 and Appeal No. 176/2018 are cases that were transferred by the High Court of Karnataka to the Tribunal during its pendency vide common order dated 30.11.2012. It may be relevant to note that when these cases were filed before the High Court, the NGT Act, 2010 had not been enacted and, therefore, the Tribunal had not come into existence. The transfer took place as a consequence of the order dated 09.08.2012 passed by the Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan & Ors. Vs. Union of India & Ors., (supra).2

The provisions of this Act, therefore, cannot be made applicable to these cases. The High Court of Karnataka after taking cognizance, had been issuing directions were from time to time and were pending disposal. As the cases were transferred from the High Court, the Tribunal would exercise the powers vested in the High Court to the extent applicable having regard to its jurisdiction.

Notwithstanding the above, it is pertinent to also note that in the interregnum, EC dated 20.03.1997 came to be cancelled by the MoEF&CC vide letter dated 05.10.2004 but was revalidated.

Soon thereafter letter dated 31.01.2005 was also challenged before the National Environmental Appellate Authority under the extant NEAA Act, the Appellate Authority before the National Green Tribunal Act, 2010 came into force. On dismissal of this Appeal solely on the ground of limitation, W.P. No. 21439/2005 (GM-POL-PIL) was filed before the High Court assailing the project on several grounds including the dismissal order followed by several other Writ Petitions on the same question amongst others. During its pendency, the Writ Petitions came to be transferred to the Tribunal by a common order dated 30.11.2012 which continued thereafter before us.

We, therefore, are of the view that the objection on the ground of the cases being barred by limitation cannot be sustained and is accordingly rejected.

ii. Was the project proponent (phase-I) shifted illegally to Yellur and, can the establishment of the power project 2 (Phase-I) at Yellur be said to be at a location for which no EIA study had been carried out and for which no Environmental Clearance had been granted?

We have already taken note of the fact that in the statement of objections of the Respondent No. 5 in O.A. No. 578/2018 which has also deals with this very question, it has been stated that the thermal power project is not a site specific project as provided under Clause 2 (II) of the EIA Notification, 1994 but a project specific one for which there was no system or guidelines requiring the furnishing of coordinates of the plant boundaries. Only one coordinate of the location in order to which the plant is coming up was required to be given. Section 4 of the REIA report of 1996 mentions that the plot of land identified for the project site falls under Tenka, Yellur, Inna, Palimar and Nandikur villages and, therefore, the location of the project that was covering Yellur village was submitted for the EC right from the inception. Thus, a 6 km radius study was done for buffer zone, 20 km studies for predicting air quality concentration on the Western Ghats, Modeling Study to predict the impact of the project and Ground Level Concentration (GLC) in predominant wind direction were carried out. It is further contended that Yellur village was not being used for disposal of ash pond direction to which effect had been issued by the KSPCB in the conditions of Site Clearance dated 19.03.1996. Several documents and maps placed in support of these submissions have been examined.

We have also considered the stand of the MoEF&CC which is revealed from letter dated 09.01.2009 with regard to transfer of EC from M/s. Nagarjuna Power Corporation Ltd. to M/s. Udupi Power Corporation Ltd. granting EC for the project from 1015 MW to 1200 MW where it has been stated as under:

"2. It has been noted from the letter No. PCB 200 HPI-208/847 dt. 1.12.2008 from KSPCB that the site location of Udupi Power Corporation Ltd (Previously M/s. Nagarjuna Power Corporation Limited) though KIADB and the current site of the project is one and the same for which the environmental clearance has been issued by MoEF on 20.3.1997. Further, it has also been noted from the letter dt. 18.12.2008 from KSPCB that the coordinates of the site for which environmental clearance was issued were 13' 08' 54" N and 74' 48' 8.5" E and coordinates of the project site now are 13' 09' 8" N and 74' 47' 37" E, whose difference is not very significant.

The Govt. of Karnataka, Forest, Ecology and Environment Dept. Vide letter No. FEE 136 ECO 2008 dt. 12.12.2008 have also informed that the location of the 1015 MW project by M/s. Nagarjuna Power Corporation Ltd. for which environmental clearance has been issued by MoEF and the site proposed to be taken over by M/s. Udupi Power Corporation Ltd. are one and the same."

We have further examined the relevant documents and maps placed before us. Having scrutinized those, we find the contention that the project site had been illegally shifted to Yellur does not appear to be correct. We also do not agree that the establishment of power project at Yellur was illegal as no EIA study had been made in respect of the area and for which no EC had been granted and is accordingly rejected. However, the question as to whether the EIA or REIA undertaken was in accordance with the EIA Notification, 1994 shall be dealt with while considering Appeal No. 176/2018 as the facts are interlinked.

iii. Is the grant of extension of the Environmental Clearance dated 20.03.1997 vide letter dated 31.01.2005 through a communication of a Director of the Ministry superseding the order of cancellation dated 05.10.2004 issued by the MoEF&CC valid in law?

We have examined the response of the MoEF&CC to ascertain the factual position in this regard. It is stated that the report of the Director, Regional Office, MoEF&CC at Bangalore by which it has categorically been mentioned that constructions had come up at the site during the period of validity of the Environment Clearance. This fact, according to the Ministry, was supported by the KIADB, various work orders issued to the contractors and bills raised by the contractor. It has also been stated that as the construction activity had commenced before March, 2004, the EC continued to be valid. We may refer to paragraph 20 of the statement of objections filed by the Ministry filed in O.A. No 578/2018 which is reproduced below:

"20. Para 22: Dr. Harapanahalli, is Director of this respondent's Regional Office at Bangalore. There is no reason for this respondent to doubt the report given by its officer more so when the same is supported by the documents such as the letter of the owner of the land where the construction has come up, the permission from the Karnataka Industrial Area Development Board, the work orders issued to the Contractor and the bills raised by the contractor. These documents have been produced by this respondent before the National Environment Appellate Authority. As the construction activity has commenced before March 2004, the environment clearance remains valid. As per the EIA notification 1994 public hearing was made mandatory only after 10.4.1997, Project cleared before this date did not require public hearing."

As will appear from the above extract of MoEF&CC's statement of objections, it is silent on the issuance of letter dated 05.10.2004 cancelling the EC date 20.03.1997 and the impugned letter dated 31.01.2005 recalling the cancellation. However, a careful examination of the letter dated 05.10.2004 reveals that the matter pertaining to the validity of the EC was being deliberated between the project proponent and the MoEF&CC. Letters of the project proponent dated 20.11.2003, 22.03.2004 and 19.05.2004 were found to have been referred to before conveying that the EC stood cancelled. As the letter is of crucial relevance, we may reproduce the contents thereof below:

"To,

Dated: 5.10.2004

Shri. K.S. Balachandra,

General Manager,

Nagarjuna Power Corporation Limited,

No.510, 3rd 'A' Cross, 2nd Main, 3rd Block,

Raj Mahal Vilas-II, Dollars Colony,

Bangalore-560094, Karnataka.

Sub: 2x507.7 MW Coal Based Thermal power Project at Padubidri near Mangalore, Karnataka of M/s. Nagarjuna Power Corporation Ltd. Revalidation of environmental clearance reg.

Sir,

The undersigned is directed to refer to your communication No. NPCL/B04/2003 dated 20th Nov., 2003, 22nd March, 04, and 19th May, 04 on the above mentioned subject.

This matter has been examined, As per EIA notification No. S.O.60(E) dated 27th January, 1994 and its subsequent valid for a period of five years for commencement of construction or operation. Since there is no commencement of construction or operation of the project even after revalidation for further period of two years, and Public hearing has become mandatory since 10th April, 1997, the validity of environmental clearance accorded to this project on 20th March, 1997 stands cancelled.

You are advised to seek fresh environmental clearance for this project as per procedure laid down in the EIA Notification 1994 and its subsequent amendments.

(A. DURAISAMY)

DIRECTOR"

In the written submissions filed on behalf of the Respondent No. 5, it is stated that letter dated 20.11.2003 referred to in the letter of the Ministry dated 05.10.2004 pertain to "construction work on the Project as a whole meaning EPC Contract post financial closure as by that time Government had not yet extended payment security (A-CV- at 56-57)." The Regional Director of MoEF&CC who was deputed to visit the site did so only on 01.12.2004 and submitted a report with supporting documents, stating that activities had started at the spot, such as site office with the consent of the site owner, approval by KIADB and formation of road. It is also stated that the Respondent No. 5 had made representations to the Minister, Director and Joint Secretary of the first Respondent requesting for review of the decision and to reinstate the EC. The Respondent No. 5 also states that as per official notings in the file, the MoEF&CC was satisfied with the Regional Director's spot inspection report which led to the decision to issue letter dated 31.10.2005.

Upon careful consideration of the facts set out above, we find it reasonable to infer that (i) the Respondent No. 5 had not commenced construction as the language in the letter dated 05.10.2004 clearly suggests and (ii) that no public hearing had at all been held before grant of EC dated 20.03.1997.

The Minister, MoEF&CC and the Ministry officials had been approached by the Respondent No. 5 that ultimately led the Director, MoEF&CC to issue the impugned letter dated 31.01.2005. We do not find the purported inspection report of the Regional Director of the MoEF&CC to be so credible as to inspire our confidence. The D.O. letter recalling the cancellation order issued by Director, MoEF&CC is also found to be innocuously worded and bereft of any reason and unclear as to whether or not it had been written under order of the Government as will appear from a bare reading of its reproduction below:

"Indrani Chandrasekharan

Director (IA)

D.O. No. J.13011/23/96-I-A-II(T) Part

Tel: 24360662

Fax: 24360734

E.mail: [email protected]

Date: 31st Jan. 2005

Shri Balachandra,

Kindly refer to your letter no. NPCL/BO4/2004 dated 20th Nov. 2003, 22nd March, 2004, 19th May, 2004 seeking clarification regarding validity of the of the Environmental Clearance granted to Nagarjuna Power Project, Mangalore.

This is to inform you that the Environmental Clearance granted to you in March, 1997 continue to be valid and there is no need for conduction a public hearing.

With regards,

Yours sincerely,

(Indrani Chandrasekharan)

Shri. K.S. Balachandra

General Manager,

Nagarjuna Power Corporation Limited,

No.510, 3rd 'A' Cross, 2nd Main, 3rd Block Raj Mahal Vilas-II, Dollars Colony, Bangalore-560094, Karnataka."

The reservation expressed by us on the credibility of the inspection report submitted by the Regional Office of the MoEF&CC and the letter dated 31.01.2005 of the Director, MoEF&CC stands justified by the following:

i. The Deputy Development Officer, KIADB conveyed the approval for construction of project site office only vide letter dated 17.12.2004.

ii. Possession Certificate was issued on 17.12.2004 by the KIADB that lands are handed over to the project proponent.

iii. Subsequent to the date of the inspection report, the Respondent No. 5 had written a letter dated 02.02.2005 to the Secretary, Yellur Gram Panchayat seeking concurrence of the land having been handed over by KIADB and to concur for taking up construction of project site office, guest house, store and access roads as per sanction plan.

The correspondences referred to above quite obviously predates the Inspection Report which would unambiguously establish that even as on 05.10.2004 no construction, leave alone site office, had at all commenced at the project site before March, 2004 as stated by the MoEF&CC in its affidavit. We may note that the validity of the EC was to expire on 19.03.2004 having been extended for two years on 16.04.2002 after the initial 5 years' validity had expired. Thus, it would be reasonable to infer that the inspection report dated 06.12.2004 and the letter dated 31.01.2005 were procured by the project proponent dishonestly.

For the aforesaid reasons, we hold that the extension of the EC dated 20.03.1997 vide letter dated 31.01.2005 of the Director, MoEF&CC superseding the order of cancellation dated 05.10.2004 is illegal and invalid. Resultantly all actions taken in pursuance of such extensions stand also rendered invalid and the question of bar of limitation redundant and superfluous.

After having dealt with the questions arising in the O.As as above, we may next take up Appeal No. 176/2018.

II. Appeal No. 176/2018

It is pertinent to note that during the pendency of W.P. No. 21439/2005 (i.e., present O.A. No. 578/2005), EC dated 20.03.1997 was amended by the MoEF&CC vide order dated 01.09.2011 by incorporating two enhancements to the capacity of the thermal power plant on 25.01.1999 from 1000 MW to 2x507.5 MW and on 09.09.2009 from 2x507.5 MW to 2x600 MW respectively. We may also note that when such enhancements were being allowed, the O.As were still pending hearing firstly before the High Court and then before the Tribunal after its transfer.

Challenging the aforesaid EC, the Applicant, Janajagruthi Samithi filed Appeal No. 34/2011 before the National Green Tribunal (NGT), Principal Bench at New Delhi which was disposed off holding that the impugned order dated 01.09.2011 was only an order amending the EC dated 20.03.1997 and, as the amendment would merge with the said EC which was a subject matter of dispute before the Karnataka High Court in W.P. No. 21439/2005 (i.e., present O.A. No. 578/2005), it would be appropriate to dispose off the Appeal giving liberty to the Appellant to work out his remedies in accordance with law by approaching the Karnataka High Court.

Following the aforesaid order, W.P. No. 22933/2012 was filed by the Appellant on 04.07.2012 which later got transferred to the NGT, SZ at Chennai vide order dated 14.08.2012 of the Karanataka High Court, as a fallout of the directions issued by the Hon'ble Supreme Court in its order dated 09.8.2012 in Bhopal Gas Peedith Mahila Udyog Sangathan & Ors. Vs. Union of India & Ors (supra).3

The W.P. No. 22933/2012 thus, got registered as Appeal No. 51/2012 which is now Appeal No. 176/2018. In the Appeal, the Appellant has questioned the validity of the amended Environmental Clearance dated 09.09.2009 and the "Comprehensive Environment Clearance" dated 01.09.2011 granted in favour of M/s. Udupi Power Corporation Ltd. (arrayed as Respondent No.5 in this Appeal).

The facts stated in brief are that the initial Environmental Clearance dated 20.03.1997 which was for 1000 MW capacity was enhanced to 2x507.5 MW vide MoEF&CC letter dated 25.01.1999 (which appears to have been wrongly mentioned as '25.01.1999' in the letter of the MoEF&CC). This was further enhanced to 2x600 MW vide letter dated 09.09.2009. This enhanced capacity had been allowed without following the procedure prescribed in EIA Notification, 2006. It is contended that the enhancement had been granted despite there being repeated violations of the Environment Conditions by the project proponent revealed by various inspection reports and the notices issued thereafter by the KSPCB. The Appellant asserts that there is no provision for "Comprehensive Environment Clearance" under the law. Several objections raised by the Applicant with regard to various infractions including seepage of sea water and salt rift, permitting use of coal with higher ash content, adverse impact on agriculture crops, house and other structures regarding which the KSPCB had also raised, were ignored by the MoEF&CC before grant of the impugned EC. The Appellant contends that the amendment to the EC enhancing the capacity with additional terms and conditions vide the "Comprehensive Environment Clearance" granted on 01.09.2011 incorporating several new conditions with no reference to the original or amended clearance, transforms the nature of the project and would tantamount to granting fresh clearance and is not a mere amendment.

The MoEF&CC in its statement of objections has stated that the letter dated 01.09.2011 is an amendment to original EC dated 20.03.1997 by which only additional stringent conditions have been stipulated. According to the Ministry some amendments have been made with respect to ash content of coal to be used and mode of transportation purely on merits of the case. In support of this, minutes the 12th, 15th, 17th, 20th and 22nd meetings of the EAC (Thermal) have been referred to. That total transparency had been maintained by uploading the proceedings in the Ministry's website. The concerns expressed by Mr. Balakrishna Shetty for the Samithi had also been taken due note of. Further, point-wise reply to the allegations made by the Samithi had also been submitted by project proponent.

Though not stated in the response to the Appeal but taken in the statement of objections filed in 21439/2005 (GM-POL-PIL), i.e., O.A. No. 578/2018, it has been stated by the MoEF&CC that proposal for 1000 MW Coal Based Thermal Power project was submitted by the project proponent sometime in June 1996 along with required documents, namely, (a) Rapid Environmental Impact Assessment and Environment Management Plan, (b) application form as Schedule II of the Environment Impact Assessment Notification of January 1994 (as amended on 04.05.1994), (c) the questionnaire for power projects and (d) Provisional Site Clearance for the project issued by the Karnataka State Pollution Control Board on 19.03.1996. Further, that the project proponent had represented that it would use imported coal with maximum 17% ash content and an average of 0.2% to 0.8% sulphur content as main fuel and metal Electro-static Precipitator with 99.8% efficiency to ensure that the particulate emission did not exceed the prescribed limit of 150 MG/Nm3.

These, according to the Ministry, were duly considered by the EAC in its meetings before recommending for Environmental Clearance (EC).

The Respondent No. 5 apart from taking the same stand as the MoEF&CC, has contended that in the garb of challenging the EC dated 01.09.2011 ("Comprehensive Environment Clearance" oramendment to the EC dated 20.03.1997), attempt has been made to indirectly challenge the EC dated 20.03.1997.

In our view, the contention does not appear to be correct as admittedly by the "Comprehensive Environment Clearance", the EC granted on 20.03.1997 and the amendments thereto by permitting two expansions on 25.01.1999 and 09.09.2009, were being amalgamated which is also the stand of the respondents. Letter dated 01.09.2011 also shows that it is not a mere amalgamation as it also proposes further amendments to condition Nos. (vi) and (ix) under para 2 to the EC dated 20.03.1997 in addition to the earlier amendments permitting enhancements of capacity to 2x507.50 MW and 2x600 MW vide letters dated 25.01.1999 and 09.09.1999 respectively with regard to which we have alluded earlier. Thus, while examining the legality of the "Comprehensive Environment Clearance" or "Amendment to Environmental Clearance", it would be necessary to examine the entire order of amendment which would bring within its sweep consideration of the other Environmental Clearances and amendments.

In O.A. Nos. 578/2018, 579/2018 and 580/2018, the Appellant has sought to challenge the grant of EC on several grounds including the location of the power plant on varying grounds. The stand of the MoEF&CC as well as the project proponent is that challenge to the EC dated 20.03.1997 was barred by limitation, delay, laches and constructive res judicata. As per the MoEF&CC, the Applicant had earlier challenged the setting up of 2420 MW thermal power project and ash pond by the National Thermal Power Corporation at Nandikur, Yellur, Nitte, Kanthavara, Inna, Palimaru and other villages by filing W.P. Nos. 1112/1991 and 24197/1990 by the President of the Applicant's society which came to be dismissed by the High Court on 06.08.1991.

Later, the project was bifurcated into two halves, one of the halves was granted in favour of M/s. Mangalore Power Company (a subsidiary of Cogentrix of USA) and the other half, in favour of the 5th Respondent. W.P. No. 28651/1996 was again filed challenging the 1000 MW power plant allotted in favour of the Mangalore Power Company raising therein the very same issues as in the present application. It has been contended that the High Court after holding that the objections raised in the Writ Petition were not sufficient to quash the Clearances, had directed the Ministry to take into consideration the reports of DANIDA, NEERI and the views expressed by Mr. Sagaradhara within three months. The action as directed had been taken and adequate steps to ensure environmental protection for minimizing environmental impact for which stringent conditions had been imposed. Affidavit of compliance was duly filed before the High Court. For these reasons, according to the Respondents, the present application is hit by the principle of constructive res judicata.

We are, however, not impressed by this submission. In so far as challenge to the EC dated 20.03.1997 is concerned, we have already held that those are not barred by limitation considering the facts and circumstances alluded to already. As regards the invocation of the doctrine of constructive res judicata, we find that the Writ Petitions referred to in support of this submission pre-dates the impugned EC dated 20.03.1997 as being W.P. Nos. 1112/1991, 24197/1990 and 28651/1996. The facts of those writ petitions have also not been adumbrated thus depriving us of the benefit to scrutinize those. Moreover, admittedly the High Court had directed further examination of the project taking into consideration expert opinion of DANIDA, NEERI and one Mr. Sagaradhara from which it can be inferred even the High Court was not satisfied with the steps taken by the Respondents. The numerous litigations pursued by the Petitioners/Applicants before the High Court and other authorities some of which have culminated in the present cases is clearly reflective of the fact that they were never idle in raising the concerns arising out of the project. Again in environmental matters as in the present cases where the incidence of infraction of the laws would be on a large body of people, the ecology and the bio-diversity, it will be too pedantic an approach to apply the principle. We accordingly reject such contention.

As already observed earlier, Appeal No. 176/2018 has not been filed to assail the EC dated 20.03.1997 only but also the amendments made thereto which is being sought to be ratified by the "Comprehensive Environment Clearance" dated 01.09.2011. Therefore, the subsequent amendments purportedly being amalgamated in the "Comprehensive Environment Clearance" dated 01.09.2011 which also has been termed as "amendment of EC" would not fall within such bar. The amendment of the EC vide letter dated 01.09.2011 gives rise to a fresh cause of action.

A careful examination of the impugned letter dated 01.09.2011 permitting amendment of Environmental Clearance reveals that the EC accorded for 2x500 MW power project on 20.03.1997 had been permitted to be amended thrice. The first of such amendment was allowed on 25.01.1999 by which capacity of the project was permitted to be enhanced from 1000 MW to 1015 MW, the second on 09.09.2009 from 2x507.5 MW to 2x600 MW and, the third was allowed on 01.09.2009 whereby amendments have been permitted to some of the Conditions of EC dated 20.03.1997 while granting the "Comprehensive Environment Clearance".

We have already noted that several Writ Petitions were filed against establishment of the project prior to the grant of EC dated 20.03.1997. During the pendency of those cases EIA Notification, 1994 came to be issued by the MoEF&CC thereby bringing the project within the ambit of the said Notification. Except for raising objections on technical grounds of locus standi, bar of limitation, delay in laches, as well as stating that all procedures had been followed and necessary safeguards provided, none of the respondents including the MoEF&CC have even whispered on this aspect. As per Notification under clause (2), application in the proforma specified in Schedule to the Notification, accompanied by a project report including EIA report/EMP prepared in accordance with the guidelines issued by the Central Government from time to time, was required to be submitted. Schedule 1 to the EIA Notification, 1994 which provides for the list of projects requiring EC from the Central Government mentions thermal power plants at serial number 19. In the Explanatory Note regarding the Impact Assessment Notification, necessity of a comprehensive EIA report has been mentioned but considering the fact that at least one year would be required for its preparation, project proponents had been permitted to furnish Rapid EIA report to the Impact Assessment Agency (IAA) based on one season data (other than monsoon), for examination of the project. However, Comprehensive EIA report could be submitted later, if so asked by the IAA. The IAA had the discretion to dispense with the requirement of the EIA in cases of projects which were unlikely to cause significant impacts on the environment. This, however, could be permitted only subject to the project proponent furnishing full justification for such exemption and, if such exemption was granted, the project proponents would be asked to furnish such additional information as may be required. We may refer to clause 5(vii) of the Explanatory Note in this regard.

Perusal of the entire records placed before us in respect of the EC dated 20.03.1997, do not reveal that any of the procedures prescribed under the Notification dated 27.01.1994 had at all been followed. It is an admitted case, as would be revealed from the statement of objections of the MoEF&CC, that the Respondent project proponent had submitted the proposal of 1000 MW Coal Based Thermal Power project sometimes in June, 1996. Although documents like Rapid Environmental Assessment and Environmental Management Plan had been submitted along with the application form provided under Schedule II to the EIA Notification, 1994 as well as a questionnaire and provisional site clearance issued by the State Pollution Control Board on 19.03.1996, the requisite comprehensive EIA report was apparently not submitted afterwards and, if it had been dispensed with, it has nowhere been stated so and further, that such exemption had been granted on the basis of full justification given by the project proponent and also, that additional information had been sought for from them. It has no doubt been stated on behalf of the respondents that the project was a part of the larger project of 2420 MW in respect of which certain studies had already been undertaken and, therefore, further studies were not felt necessary but, in our considered opinion, when the regulations had come in place, it was incumbent upon the MoEF&CC and the project proponent to have complied with those regulations considering the alteration in the capacity of the project to 1000 MW. It has to be eminently borne in mind that the EIA Notifications had been issued keeping in view the Precautionary Principle and the principle of Sustainable Development and was not meant to be a mere formality. Thus, the mandatory procedures as laid down in the statutory Notification having not been complied with even in respect of the initial EC dated 20.03.1997, setting up of the project cannot be considered as lawful.

Even the first expansion from 1000 MW to 1015 MW accorded vide letter dated 25.01.1999 clearly appears to be in violation of Clause 2 (I) (a) of the EIA Notification, 1994 as would appear from its reproduction below:

"2. Requirements and procedure for seeking environmental clearance of projects:

I.(a) Any person who desires to undertake any new project or the expansion or modernisation of any existing industry or project listed in Schedule I shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi.

The application shall be made in the proforma specified in Schedule II of this notification and shall be accompanied by a project report which shall, inter alia, include an Environmental Impact Assessment Report/ Environment Management Plan prepared in accordance with the guidelines issued by the Central Government in the Ministry of Environment and Forests from time to time."

In the letter dated 25.01.1999, we only find the following remarks while allowing the expansion:

"The matter has been looked into and it has been noted that the increase in the capacity is due to the improvement in the plan efficiency and up rating of turbines. The coal consumption would also be reduced to 99.3% of the coal consumption considered in the EIA report/clearance keeping in view that the pollution levels would be within permissible limit even after increase in the capacity, Ministry has not objection to the installation of 1015 MW capacity station. However, necessary amendments in this regard should also be obtained from the Karnataka State Pollution Control Board."

The letter is bereft of any detail as to whether the requirement of Clause 2 (I) (a) of the EIA Notification, 1994 reproduced above had been satisfied. We have also perused the entire records and we do not find any material to support that the enhancement of the project by 15 MW though seemingly a minor enhancement, had been subjected to the said requirements.

Further the 'Explanatory note regarding the Impact Assessment Notification dated 27.01.1994' prescribing the procedure for 'expansion and modernization of existing projects' reads as under:

"A project proponent is required to seek environmental clearance for a proposed expansion/modernisation activity if the resultant pollution load is to exceed the existing levels. The words "pollution Load" will in this context cover emissions, liquid effluents and solid or semi-solid wastes generated. A project proponent may approach the concerned State Pollution Control Board (SPCB) for certifying whether the proposed modernization/expansion activity as listed in Schedule-I to the notification is likely to exceed the existing pollution load or not. If it is certified that no increase is likely to occur in the existing pollution load due to the proposed expansion or modernization, the project proponent will not be required to seek environmental clearance, but a copy of such certificate issued by the SPCB will have to be submitted to the Impact Assessment Agency (IAA) for information. The IAA will however, reserve the right to review such cases in the public interest if material facts justifying the need for such review come to light."

From the discussions, we find that both the expansions permitted earlier do not appear to have satisfied the aforesaid requirements.

We may take note of the fact that the EIA Notification, 1994 was replaced by the EIA Notification dated 14.09.2006. Thus, the first amendment to EC dated 25.01.1999 and the second dated 09.09.2009 which is stated to have been permitted after due diligence, would fall under the EIA Notification, 1994. However, the third permitted on 09.09.2009 permitting expansion of the project to 2x600 MW from 2x507.5 MW would squarely fall within the provisions of the EIA Notification, 2006. The enhancement which is by 185 MW can by no means be considered as a minor enhancement. Under clause 2 of the EIA Notification, 2006, it has been clearly laid down as under:

"2. Requirements of prior Environmental Clearance (EC):-The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:

(i) All new projects or activities listed in the Schedule to this notification;

(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;

(iii) Any change in product - mix in an existing manufacturing unit included in Schedule beyond the specified range."

Thus, the expansion allowed by 185 MW from the existing capacity of 1015 MW would fall within the mischief of Clause 2(ii), i.e., expansion of existing projects and, since the thermal power plant in question falls in Category 'A' being a Coal Based Thermal Power Plant of more than 500 MW, it would require prior EC from the concerned regulatory authority, i.e., MoEF&CC. We may refer to Clause 1(d) of the Schedule to the EIA Notification, 2006 which is reproduced below for convenience:

" Project or Activity

Category with threshold limit

Conditions if any

A

B

1

Mining, extraction of natural resources and power generation (for a specified production capacity)

(2)

(3)

(4)

(5)

1(a) to 1 (c) ..................xx..................x..................xx

1 (d)

Therm al Power Plants

≥ 500 MW (coal/lignite/ naptha & gas based); ≥ 50 MW (Pet coke diesel and all other fuels-)

≤ 500 MW (coal/ lignite / naptha & gas based); < 50 MW ≥ 5 MW (Pet coke, diesel and all other fuels)

General Condition shall apply.

Again Clause 7 (ii) of the EIA Notification, 2006 which prescribes the procedure for prior Environmental Clearance for expansion or modernization or change in product mix in existing projects, is reproduced below:

"7(ii). Prior Environmental Clearance (EC) process for Expansion or Modernization or Change of product mix in existing projects: All applications seeking prior environmental clearance for expansion with increase in the production capacity beyond the capacity for which prior environmental clearance has been granted under this notification or with increase in either lease area or production capacity in the case of mining projects or for the modernization of an existing unit with increase in the total production capacity beyond the threshold limit prescribed in the Schedule to this notification through change in process and or technology or involving a change in the product -mix shall be made in Form I and they shall be considered by the concerned Expert Appraisal Committee or State Level Expert Appraisal Committee within sixty days, who will decide on the due diligence necessary including preparation of EIA and public consultations and the application shall be appraised accordingly for grant of environmental clearance."

[Underlining supplied]

From the above, it is evident that for the proposed expansion, the project proponent is required to submit proposal in Form I which shall be considered by the concerned Expert Appraisal Committee (EAC) or State Level Expert Appraisal Committee within 60 days, who will decide on the due diligence necessary that would includepreparation of EIA and public consultations and thereafter appraise the application for grant of Environmental Clearance.

Letter dated 09.01.2009 granting enhancement of project capacity only mentions that setting up of 1015 MW had been accorded by the Ministry vide letter dated 20.03.1997 but, we find no material to demonstrate that all the procedure including preparation of EIA and holding public hearings have been followed for grant of the enhancement from 1015 MW to 1200 MW. The only factors taken into consideration are contained the letter dated 09.09.2009. Being relevant, we may reproduce the relevant portion of the said letter which reads as follows:

"To

Dated: 9th September, 2009

M/s. Udupi Power Corporation Limited

Prestige Opal, Unit 202, 2nd Floor

#146, Infantry Road

Bangalore-560 001

Sub: Enhancement of project capacity from 2x507.5 MW to 2x600 MW coal based thermal power plant at Padubidri New Mangalore Karnataka by M/s. Udupi Power Corporation Limited-Environmental clearance regarding.

Sir,

Reference is invited to your letter No. UPCL/B04/2009/1193 dated 16.1.2009 requesting for enhancement of project capacity from 2x507.50 MW to 2x600 MW in respect of the above mentioned project. Subsequent information furnished vide letter No. UPCL/ MOEF/2009 dated 11.2.2009, letter no. UPCL/CRZ/2009 dated 19.2.2009 and letter no. UPCL/B04/2009/234 dated 23.2.2009 have also been considered.

It is noted that the environmental clearance for setting up of 1015 mw was accorded vide this Ministry's letter of even number dated 20th March, 1997. M/s. Udupi Power Corporation Limited has now proposed to examine the project capacity from 2x507.50 MW to 2x600 MW. It is further noted that:

(i) No additional land is required due to change in capacity.

(ii) Coal requirement will increase from 415 MT/hr to 488 MT/Hr.

(iii) Ash content in imported coal will decrease from 13.91% to 4.75% and sulphur content will increase from 0.53% to 0.80%.

(iv) Predicted GLC for So2 will decrease from 10.10 ug/m3 to 8.14 ug/m3 due to increase in stack dia and increase in effective stack height.

(v) Make up water requirement will increase from 8000 m3/hr to 10000 m3/hr."

3...............................xx...............................x...............................xx

The MoEF&CC had conveyed it's no objection to such enhancement subject to strict implementation of the conditions contained in the EC dated 20.03.1997 with 12 additional conditions stipulated in the said letter. This obviously is not in consonance with the procedure for grant of EC prescribed for expansion under the EIA Notification, 2006.

A bare reading of the letter dated 01.09.2011 would show that the amendment of Environmental Clearance granted vide letter dated 01.09.2011 is not an amendment of the EC dated 20.03.1997 simpliciter but rather ratification of the earlier two ECs with additional change in the conditions, more specifically the condition nos. (vi) and (ix) under para 2 of the EC dated 20.03.1997 and the letter dated 09.09.2009, which would be evident from paras 2 and 3. It has no doubt been stated that the proposal regarding amendment was deliberated in the 12th, 15th, 17th, 20th, 22nd and 26th Meetings of the Expert Appraisal Committee (Thermal Power) held during December, 2010, January, 2011, February, 2011, March, 2011, April, 2011 and June 2011 respectively. However, we do not find mention of any EIA studies that had been undertaken as required either under Clause 1 of the Explanatory Note of the EIA Notification 1994 in respect of expansion and modernization of existing projects or under Clause 7(ii) of the EIA Notification, 2006. In our view, this is a serious breach having regard to the object for which the aforesaid procedures have been laid down.

To elaborate further, it is the admitted case of the MoEF&CC that the amendment was permitted after considering the proposals submitted by the project proponent purely on the merits of the case after deliberating all the concerns expressed by the Samithi in the meetings of the EAC. The Samithi appears to have raised serious questions with regard to the affect of the proposed amendments. The additional requirement of coal to the augmented plant would also have ramification in relation to ash content, sulphur, etc. of the coal used in the plant. There were also other concerns with regard to the transportation of coal and dry fly ash to the ash disposal area as well as use of water from the sea instead of Mulki river. The minutes of the EAC indicate that the Samithi had been raising various other issues including impact on the public health and the school children in the area. The 26th meeting of the EAC held on 6th-7th June, 2011 after arriving at the conclusion that the amendments sought for is not in contravention to any statement made by the Ministry in the High Court nor any judgement passed by the High Court and that the request made by the project proponent was valid, confirmed grant of EC.

The facts and circumstances would no doubt show that the proposal of change in some of the clauses of the EC granted earlier had been deliberated by the EAC but, this cannot be a substitute to the procedure prescribed in the EIA Notifications of both 1994 and 2006. Admittedly no EIA studies had been undertaken and no public hearing had been conducted which the rules make it mandatory to abide by.

Apart from the above, no public hearings had apparently been conducted as mandated under the regulation of 1994. It has been stated in para 9 of the statement of objections filed by Respondent No. 5 in Appeal No. 86/2018 that Notification dated 27.01.1994 under paragraph III (c) did not make public hearing mandatory. This statement is contrary to very said provision which reads as under:-

"(c) The Impact Assessment Agency shall prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities, supplemented by data collected during visits to sites or factories, if undertaken, and interaction with affected population and environmental groups, if necessary. Summary of the reports, the recommendation and the conditions, subject to which environmental clearance is given, shall be made available subject to the public interest to the concerned parties or environmental groups on request. Comments of the public may be solicited, if so decided by Impact Assessment Agency, within thirty days of receipt of proposal, in public hearings arranged for the purpose after giving thirty days notice of such hearings in at least two newspapers. Public shall be provided access, subject to the public interest, to the summary of the reports/ Environmental Management Plans at the Headquarters of the Impact Assessment Agency.

The assessment shall be completed within a period of ninety days from receipt of the requisite documents and data from the project authorities and completion of public hearing, where required, and decision conveyed within thirty' days thereafter."

[Underlining provided]

From the above, it is quite evident that public hearings was necessary to be arranged after giving 30 days notice for such hearings in at least two newspapers. Of course, whether to solicit comments of the public or not is to be decided by the IAA, but it is not the case of any of the Respondents that the IAA had decided not to do so. It is rather their case that no public hearing was necessary at all. This is a serious lacuna in the proceedings rendering the earlier ECs and the impugned EC dated 01.09.2011 as being illegal.

There is another aspect of the matter which renders the impugned EC dated 01.09.2011 questionable as admittedly no public hearing had been conducted. To defend this lacuna, it has been contended that the project being located in a notified industrial area, it was exempted from public hearing. Reference in this regard has been made to 7(i), III(i)(b) of EIA Notification, 2006.4 The submission appears to be misconceived in as much as clause 7 (i) sets forth the different stages for a new project to undergo in the process for obtaining Environmental Clearance. Clause 7 (ii)5 on the other hand deals with the process for expansion as already dealt with earlier. Item No. 7 (c) which sets out the category of industries for which public consultation has been exempted under Stage III, deals with expansion of roads and highways which do not involve any further acquisition of land. 'Thermal Power Plants' is provided under Clause 1(d) of EIA Notification, 2006 and, as already noted, falls under 'Category A'. Indisputably the project of the Respondent No. 5 is of category with more than 500 MW capacity for which 'General Conditions' apply as per Column 5 contained in the Schedule to the EIA Notification, 2006.

We thus find it difficult to accept such contention as the very foundation based upon the public hearing had been dispensed with appears to be grossly erroneous. Thermal power plants would involve serious environmental impacts both on air as well as on water apart from other environmental aspects. Besides the question of location, the Applicant had been pointing out time and again the impacts based on credible information.

These facts and circumstances, therefore, lead us to arrive at the irresistible conclusion that the EC dated 20.03.1997, the expansions granted to the existing power plant firstly from 1000 MW to 1015 MW and later from 1015 MW to 1200 MW vide impugned letters dated 25.01.1999 and 09.09.2009 respectively, as well as the Comprehensive Environment Clearance/amended Environment Clearance dated 01.09.2011, are violative of both the EIA Notifications of 1994 and 2006 and, therefore, invalid. Any decision contrary to this held earlier by the Tribunal or any other authority stands superseded by this finding and shall be held to be no longer valid.

Having dealt with various facts and circumstances set out in the O.A. Nos. 578/2018, 579/2018, 580/2018 which primarily assails the Environmental Clearance dated 20.03.1997 and, Appeal No. 176/2018 that questions the "Comprehensive Environment Clearance" granted on 01.09.2011, we may now proceed to deal with Appeal No. 86/2017 (SZ).

III. Appeal No. 86/2018

The Appeal is directed against the Environmental Clearance dated 01.08.2017 issued by MoEF&CC to the Respondent No. 5, M/s. Udupi Power Corporation Ltd., for expansion of the existing power project by addition of 2x800 MW (Phase-II) imported Coal Based Super Critical Thermal Power Project at Padubidri Industrial Area near Yellur, existing power project being the one with the capacity of 2x600 MW (Phase-I) with which we have dealt with in detail earlier. It is stated that the boiler of the power plant is designed for blended coal in the ratio of 70% imported coal and 30% domestic coal. In addition to the 650 acres occupied by the existing phase-I of the project, 730 acres of additional land have been proposed for the expansion of which 180 acres will be for the main plant, 272 acres for railway yard, etc., and 270 acres near the existing ash pond in village Santhur. The KCZMA has recommended CRZ Clearance for laying sea water intake and marine outfall pipelines vide letter dated 01.04.2017 which is yet to be cleared by the MoEF&CC. Additional transmission lines would require for evacuation of power that would be generated, the impact of which has not been assessed although it would involve use of forest land and would have an impact on the ecological sensitive zones and protected areas in the Western Ghats. Impact on wildlife has not been considered in the process of the Clearance and no impact assessment studies have been conducted or insisted upon although it cuts through national park. Cumulative Impact studies have not been undertaken in the EIA report. No public hearing was conducted.

It is further stated that the Environmental Clearance for the establishment of Phase I of the Udupi Thermal Power Plant was issued on 20.03.1997 for a 2x500 MW coal based TPP at Padubidri. The Phase-I Environmental Clearance was issued on the basis of a Rapid EIA, Vicinity Plan and Pre-Feasibility Report for the location in Nandikur. No public hearing was conducted. Subsequently, the MoEF&CC issued the following:-

i. Amendment on 07.08.1997 allowing single chimney with two flues.

ii. Amendment on 25.01.1999 allowing capacity enhancement from 2x500 MW to 2x507.5 MW, i.e., 1015 MW.

iii. Amendment on 16.04.2002 extending the validity of the EC dated 20.03.1997 by two years.

iv. Order dated 05.10.2004 cancelling the Environmental Clearance dated 20.03.1997 for failure to commence construction within the validity period.

v. Letter dated 31.01.2005 reinstating the EC.

vi. Amendment on 09.01.2009 January 2009 transferring the EC to the new owners and shifting the location of the TPP to the present site.

vii. EC on 09.09.2009 to the Udupi TPP for an increased capacity of 2x600 MW.

viii. "Final Comprehensive Environment Clearance" on 01.09.2011 against which it is asserted that the "Comprehensive Environment Clearance" diluted a number of the earlier safeguards under the garb of merging the earlier clearances.

ix. Amendment on 19.06.2012 with further concessions on ash disposal.

It is contended that when the present appeal was filed which is against the Environmental Clearance dated 01.08.2017 for Phase-II of the project, O.A. Nos. 578/2018, 579/2018, 580/2018, and Appeal Nos. 176/2018 assailing the Environmental Clearance dated 20.03.1997 for Phase-I of the project and its subsequent amendments, were still pending before the Tribunal.

Although the Terms of References (ToR) for expansion were issued on 11.08.2010, the project proponent could not proceed further. Memorandum of Understanding (MoU) for expansion of the existing power plant signed between the State Government of Karnataka and the Respondent No. 5 resulted in the proposal for expansion of the existing unit of 2x600 MW by addition of 1600 MW (2x800 MW units) on the land adjacent to the existing power plant. ToR was issued by the MoEF&CC vide letter dated 13.08.2015 directing public hearing to be conducted. The public hearing though was held on 10.11.2016, the local villagers were not allowed to participate due to strong arm tactics adopted by the Respondent No. 5 apart from the fact that an order under Section 144 of Criminal Procedure Code (Cr.P.C.) had been imposed in the area by the District Magistrate. The EIA report was submitted by the project proponent on 19.12.2016 with serious flaws.

The impugned Environmental Clearance has been questioned on the following grounds:

i. The EAC while recommending the project for grant of EC overlooked the fact that there were 34 cases concerning the thermal power plant amongst which some proceedings before the Tribunal challenging the Phase-I Environmental Clearance were sub-judice. Therefore, the recommendation of the EAC suffered from the vice of non-application of mind and, was also, in disregard to the authority of various Courts as well as the Tribunal.

ii. Granting of the impugned Environmental Clearance with a specific condition that it was subject to the outcome of pending Court cases pertaining to the environment and ecology, amounted to permitting the project proponent to create a fait accompli situation. This ought not to have been allowed.

iii. EIA methodology was flawed as it has not considered the impacts of the existing plant. Moreover, the impact of a brownfield power plant, data collection ought to be done for a full year and not just one season, as done in the EIA in the present case. Only a carefully designed full year data collection for all relevant parameters would reveal the full extent of the impact. This was ignored while undertaking the EIA for Yellur when the area was a brownfield site and not a greenfield site.

iv. US EPA Gaussain air pollution model has been used for the EIA study for predicting ambient air quality. This model has not been validated in India and is not reliable.

Repeating the objections raised in respect of Phase-I of the power plant, it is reiterated that the site selection for Phase-I as given in the EIA report, the site of the project permitted in the Environmental Clearance dated 20.03.1997 and the location of the actual 2x600 MW thermal power plant are different in as much as the EIA report mentions the site of Phase-I at Nandikur, the Environmental Clearance dated 20.03.1997 mentions it as Padubidri and the Phase-I is actually located at village Yellur. It is pointed out that the site at Yellur was rejected by NEERI in its report submitted in 1996 as being ecologically sensitive. There are other aspects with regard to the cancellation of the Environmental Clearance dated 20.03.1997 vide order dated 05.10.2004, its illegal reinstatement by a personal communication dated 31.01.2005 and the failure in carrying out the mandated carrying capacity studies with which we may not deal with again as being repetitive. The Applicant has raised these questions in relation to its objection that the impugned Environmental Clearance for Phase-II (expansion) was granted without consideration of the serious inadequacies in respect of earlier impugned Environmental Clearance dated 20.03.1997.

The next contention is with regard to the deleteriousness of a coal based power plant such as the Respondent No. 5 associated with the emission of particulate matters from such plants, and the health hazards caused by such emissions to the residents including the children. It is contended that the impact of the plant on human health, vegetation and the environment has not been considered at all and no studies had been carried out in this regard.

Pointing our various infirmities in the EIA undertaken by the NEERI for Phase-II of the project, it was submitted that the EAC, despite such infirmities, accepted the EIA report without application of mind. It is reiterated that the Respondent No. 5 plant had failed to comply with the Phase-Ï Environmental Clearance which MoEF&CC did not take note of.

It is contended that the EIA report does not disclose a vital component, i.e., source of coal, and no provisions have been made for analysis of its contents. Apart from the fact that the linkage for the coal supply has not been furnished. This lacuna has been allowed to prevail despite letter dated 13.08.2015 of the MoEF&CC granting the ToRs which clearly directs that "the Environmental Clearance shall be applied only after fuel and water linkages are firmed up."

It is stated that the source of coal has not been finalized as yet which, according to the Appellant, would be evident from the impugned Environmental Clearance where it has been clearly noted that "till the domestic allocation from MoC is received, 100% imported coal from Australia and Indonesia will be used."

Besides such serious infractions, even the requisite analysis of radioactivity and heavy metals, contents of the coal which is to be sourced, has not been carried out. The source of domestic and imported coal has not been identified and no studies have been carried out on such a critical aspect as mandated under ToR condition (xlv), (xlvi) and (xlvii) rendering the final EIA report inadequate. Further the Wind roses presented in the NEERI's EIA report only deal with one season and, therefore, cannot be relied upon whereas the Wind roses adopted by the Indian Meteorology Department and DHARA are annual Wind roses and, therefore, representative of the wind patterns of the sea. It is then contended that the EIA has not identified transportation route or systems for domestic coal as well as pollution mitigation measures relating to the transportation of the coal, both imported and domestic, which is critical for evaluating the impact of the expansion of the power plant. It thus violates condition (xlviii) of the ToR which mandates such study.

It is then stated that the EIA of the proposed sea water intake and outfall and identification of its suitable location does not indicate its impact on the marine environment. That apart, the EIA has been prepared by a consultant who is not a consultant accredited by the NABET and QCI which is in contravention of EIA Notification dated 03.03.2016. The study does not consider the impact of the existing sea water intake and outfall lines but, has only made a cursory attempt to identify the impacts of the new pipelines in total disregard to the several studies which show that an increase in sea water temperature caused by power plant discharge has multiple impacts on aquatic ecosystems and aquatic organisms which survive on specific thermal conditions a disproportionate change of which can cause stress or even death. This was a non-compliance of the additional ToR condition (i) which requires that 'Impact on fisheries at various socio economic levels shall be assessed.'

Crucial information about construction of ash pond, ash dykes and ash lining has not been provided. There is neither Cumulative Impact Assessment in the EIA report of the various industries, existing and proposed, in the study area nor carrying capacity of the Karnataka coastline assessed when it has been admitted in Form-1 that the project will have cumulative impacts due to its proximity to other existing or planned projects having similar effects.

The EAC has failed to take note of the objections raised by the society and the various infractions indicated earlier while appraising the EIA report and it had merely proceeded to accept the explanations offered by the project proponent and recommended the project for clearance in a hurry.

The deficiencies pointed out earlier in respect of the public hearing has been reiterated asserting further that the EIA report being in the English language could neither not be understood by the project affected people nor was it not widely circulated. The EIA is generic, non-site specific reflecting lack of application of mind on part of the MoEF&CC.

Amongst the Respondents, only Respondent No. 5, the project proponent, has filed its statement of reply stating as follows:

The Respondent had carried out EIA studies in terms of the approved Terms of Reference (ToR). The entire process prescribed in the EIA Notification, 2006 for obtaining prior EC had been complied with.

All studies as per the ToR had been carried out. The Cumulative Impact Assessment was undertaken and major industries within the study area namely, Suzlon Wind International, SE Composites (Suzlon Tower International) and Oil Storage Site of Mangalore Refinery were identified and disclosed in the EIA report in compliance to condition no. Xliii. Ambient Air Quality monitoring representing the baseline studies within 10 kms of the proposed project had been done and include in the EIA report.

Both negative and positive impacts of the project had been assessed and addressed. Public hearing had been conducted during which over 1500 people mostly from the villages within the study area had attended and videography of the proceedings has also been taken. The public hearing proceedings show the number of participants freely interacting and expressing their views. Mr. Balakrishna Shetty, who had been raising the issues on behalf of the Samithi also participated and expressed his views. The EIA report was prepared by CSIR-NEERI which is NABET-QCI accredited for carrying out such studies.

Upon perusal of the entire records, we find that while EIA studies had been undertaken and appraised by the EAC before grant of the EC, curiously the serious flaws in the "Comprehensive Environment Clearance" dated 01.09.2011 adumbrated earlier were completely overlooked before considering the proposal for expansion of the existing plant by such a magnitude, i.e., by 2x800 MW, which would be more than the twice existing capacity of 1200MW. We also find series of notices issued against the plant and proceedings instituted by the State PCB for violation of the Consent Conditions under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 but those also had been completely overlooked. It is also pertinent to note that additional 730 acres of land was involved for the expansion of which more than 400 acres was only for the plant. When the present EC dated 01.08.2017 was granted, validity of the said Comprehensive Environment Clearance was still under consideration in Writ Petition No. 22933/2012 renumbered as Appeal No. 176/2018 after transfer from the High Court in respect of which we have already dealt with earlier. Thus granting the present clearance, in our view, amounts to giving premium to a project which is in violation.

Further, in the EIA Report, in spite of its prolixity, we find that one of the vital components necessary for carrying out the studies is found to have been completely overlooked. The ToR for the project which was submitted by project proponent, has not included study on the impact of the proposed expansion by such gigantic proportion in relation to the existing 1200 MW project already in operation albeit in violation of the regulations. This gets compounded by the fact that carrying capacity had not been carried out by the State Government despite the fact that the MoEF&CC had expressed its necessity as would appear from the averments contained in its statement of objections filed in O.A. No. 578/2018 (W.P. No. 21439/2005). EIA studies carried out on a flawed ToR thus would be far from being reliable.

The next is the credibility of the public hearing that was conducted. Such hearing is one of the components of Public Consultation provided in stage (3) of the EIA Notification, 2006. It is meant, inter alia, for ascertaining concerns of local persons for which procedure is prescribed in Appendix IV of the Notification. We are not aware as to whether these procedures have been followed as scrupulously as required but, it is an admitted position on the part of the project proponent that only 1500 people from village Yellur and Santhur village were present. Although no quorum has been fixed in the notification, the number of people said to have been present at the hearing cannot be considered as representative of the entire population. This impression remains indelible and persists even if we accept the contention that about 60 eminent persons had attended the hearing including the representative of the Samithi.

Active and wide participation of the general public was necessary for the hearing to be meaningful. This is all the more necessary when the EIA report points out several impacts as reflected in paragraph 4.4.6 of the EIA report which assumes significance when we consider the following requirements in Appendix IV to EIA Notification, 2006 which is reproduced below for convenience:

"6.3 A representative of the applicant shall initiate the proceedings with a presentation on the project and the Summary EIA report.

6.4 Every person present at the venue shall be granted the opportunity to seek information or clarifications on the project from the Applicant. The summary of the public hearing proceedings accurately reflecting all the views and concerns expressed shall be recorded by the representative of the SPCB or UTPCC and read over to the audience at the end of the proceedings explaining the contents in the vernacular language and the agreed minutes shall be signed by the District Magistrate or his or her representative on the same day and forwarded to the SPCB/UTPCC concerned.

6.5 A Statement of the issues raised by the public and the comments of the Applicant shall also be prepared in the local language and in English and annexed to the proceedings.

6.6 The proceedings of the public hearing shall be conspicuously displayed at the office of the Panchyats within whose jurisdiction the project is located, office of the concerned Zila Parishad, District Magistrate ,and the SPCB or UTPCC . The SPCB or UTPCC shall also display the proceedings on its website for general information. Comments, if any, on the proceedings which may be sent directly to the concerned regulatory authorities and the Applicant concerned."

We also cannot lose sight of the fact that, concededly, order of prohibition under Section 144 Cr.P.C. had been enforced in the area on the day of the public hearing.

Considering the above facts, we find it difficult to accept that the EC granted for the project is beyond reproach but find it rather to be seriously flawed.

The question that then requires determination is, should the EC be quashed and set aside? After careful consideration, we find that further studies are unavoidable in order to ensure that the EIA is complete. We, therefore, direct as follows:

(i) Baseline data of the area in relation to the existing project of 2x600 MW shall be scrupulously collected;

(ii) In addition to the above, the State of Karnataka shall get a carrying capacity study of the area carried out.

(iii) The baseline data and the carrying capacity study shall be considered as components for studying the impact in relation to the proposed expansion;

(iv) Fresh public hearing shall be conducted strictly in accordance with the procedure laid down in Appendix IV of EIA Notification, 2006 ensuring wide participation of the people affected by the project.

After completion of the above, report shall be submitted to the MoEF&CC to be placed before the Expert Appraisal Committee for appraisal as required under stage IV of the EIA Notification, 2006.

The entire exercise shall be completed within a period of one year. In the meanwhile, EC dated 01.08.2017 shall remain suspended.

CONCLUSIONS IN SHORT

OA Nos. 578/2018, 579/2018, 580/2018 and Appeal No. 176/2018.

These cases are neither barred by limitation, delay, laches nor hit by the principle of res judicata.6

The allegation of illegal shifting of the project (Phase-I) to Yellur made by the Applicant does not appear to be incorrect.7

The letter dated 31.01.2005 withdrawing the cancellation of EC dated 20.03.1997 by communication dated 05.10.2004 of the MoEF&CC is invalid and, therefore, commencement of the project work after 20.03.2004 is unauthorized and illegal.8

Notwithstanding the above, even on merits the project is found mired in illegalities as already recorded and as will appear from the conclusions set out below.

Appeal No. 176/2018

Although the direct challenge in this Appeal is the "Comprehensive Environment Clearance" dated 01.09.2011, we have found that it is a ratification of earlier two enhancements granted from 1000 MW to 2x507.5 MW vide MoEF&CC letter dated 25.01.1999 and from 2x507.5 MW to 2x600 MW vide MoEF&CC letter dated 09.09.2009.

It has also been found that the "Comprehensive Environment Clearance"/amended Environment Clearance is not just an amalgamation of the earlier ECs as claimed by the Respondents as it contains amendments to two EC Conditions being No. (vi) and (ix) under para 2 of the EC dated 20.03.1997. While granting permission for enhancements of the project from 1000 MW to 1015 MW on 25.01.1999 which fell within the preview of EIA Notification, 1994, no REIA was undertaken nor public hearing conducted as required under the Explanatory Note to the said Notification read with para 3(c) thereof. Thus the grant of such expansion is in violation of EIA Notification, 2006.9

Insofar as the enhancement granted to the project from 2x507.5 MW to 2x600 MW on 09.09.2009 and the impugned Comprehensive Environment Clearance on 01.09.2011 are concerned, those would fall under the provisions of the EIA Notification, 2006. But despite this fact, the procedures required therein have not been followed.10 No public hearing had been conducted in this case, which is mandatory under said Notification.11

For the aforesaid reasons the "Comprehensive Environment Clearance" dated 01.09.2011 as well as the earlier expansions granted vide letter dated 25.01.1999 and 09.09.2009 are violative of the EIA Notification, 1994 and EIA Notification, 2006 and rendering all actions taken in terms of such permissions illegal.

Appeal No. 86/2017

Challenge in this Appeal to the EC dated 01.08.2017 granted by the MoEF&CC in favour of the Respondent No. 5, M/s. Udupi Power Corporation Ltd., for expansion of the existing thermal power plant by addition of 2x800 MW (Phase-II), sustains in view of the following findings:12

i. While considering the grant of expansion, the MoEF&CC had failed to overlook the fact that the project proponent had been in violation of the Conditions of consents frequently as revealed by the notices issued by the State PCB against the plant and the proceedings instituted against it under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974.

ii. The EC had been granted even when the validity of the "Comprehensive Environment Clearance" dated 01.09.2011 was sub-judice.

iii. The Terms of Reference (ToR) submitted by the project proponent and approved by the MoEF&CC did not include study on the impact of the proposed expansion of such a huge magnitude in relation to the existing 1200 MW project. No carrying capacity had been undertaken although the need for such study had been conveyed by the MoEF&CC.

iv. Public hearing conducted in respect of the project is found to be inadequate and is not in the spirit and requirement of stage (3) of the EIA Notification, 2006.

To sum up, we find that the project proponent had been in violation right from the inception. Genuinely serious issues raised by the villagers and the Applicants had not been given the due attention it observed by all concerned including the Government. The fact that multitudes of disputes and litigations relating to the project had been instituted bears witness to the fact that all was not well. Environmental clearance dated 20.03.1997 had been granted without following the due process statutorily prescribed and mandatorily required to be followed.

Extension of the validity period of the EC had been granted on 16.04.2002 at the request of the project proponent as work could not be commenced within the 5 years' period stipulated in the EC. On 05.10.2004 the EC was cancelled by the Ministry as the project proponent had still not commenced with the work of the project. This order of cancellation was recalled vide letter dated 31.01.2005 under questionable circumstances at the request of the project proponent. This was followed by expansion of the project capacity twice, i.e., from 1000 MW to 1015 MW on 25.01.1999 and from 2x507.5 MW to 2x600 MW on 09.09.2009 and that too at the request of the project proponent and on the basis of the information furnished by project proponent. No public hearings were conducted as required under EIA Notification, 1994 and 2006 nor other procedures followed before grant of such expansions.

On 01.09.2009, a "Compressive Environment Clearance" was granted ostensibly to amalgamate all the clearances but with alteration in respect of at least two of the conditions in the EC dated 20.03.1997. "Comprehensive Environment Clearance" as per the EIA Notification, 1994, is required to be preceded by a REIA for a fresh project. Admittedly this is not a case where the "Compressive Environment Clearance" was being granted for a new project, but is purportedly an amalgamation of the earlier projects. In any case, the impugned Comprehensive Environment Clearance having been issued on 01.09.2011, it is not governed by EIA Notification, 1994 under which only REIA is provided but by the EIA Notification, 2006. Comprehensive Environment Clearance is alien to the EIA Notification, 2006. The so called Comprehensive Environment Clearance was granted based on the information submitted by the project proponent and clearly appears to be an exercise to ratify the earlier EC and expansions without following the due procedure.

We have already observed that the procedures laid down under the EIA Notifications are not mere formalities to be followed but have been prescribed to ensure that the environment is duly protected while taking up a project keeping in view the Precautionary Principle and the principle of Sustainable Development. The fact that the procedures prescribed in the Notification were not at all followed except few parts of it, leads us to reasonably conclude that there has been damage caused to the environment for which consequences have fallen on the people in terms of health, decline in the agricultural productivity and, therefore, their livelihood, degradation of natural habitat of birds and animals, etc.

A study carried out on "Environmental Profile and People's Livelihood aspects in the vicinity of Coal Based Thermal Power Plant at Yellur Panchayat, Udupi District" by a group of Scientists as CES Technical Report 126 dated April 2012 published by the Energy & Wetland Research Group, Centre for Ecological Sciences, Indian Institute of Science, Bangalore, has made alarming observations in respect of the project area during field investigations. It has been observed that mismanagement of the environment was evident from the contamination of the water (surface and ground), soil and air apart from the impaired functional aspects of the biotic elements. This was deduced from the reduced productivity of grains, jasmine flower and horticultural produce, reproductive ability of livestock, poultry animals, etc. There was dust on the leaves during the dry seasons which induced phyto-toxicity leading to poor pollination and hence reduced productivity. There was reduction in the population of pollinators. Stunted growth of saplings and enhanced respiratory diseases, etc. were noticed caused by release of saline mist from the cooling towers of the plant which is locally dispersed by the wind even upto 2 kms.

The report further observes as follows:

"Analysis of the water samples collected from surface and ground water bodies within 2 km zone reveal higher inorganic anions, cations and heavy metals beyond the permissible limits of Bureau of Indian Standards (BIS) and World Health Organization (WHO). Similarly, the analysis of water samples of the villages of Yellur (including Kolachur), Nadsal (including Tenka Yermal) and Santhur by PCB also reveal of contamination. Release of effluents (oil spills rich in hydrocarbons) directly to natural drains at north-western side (Yellur) of TPP has been observed during the field work and also reported by local people in the vicinity. Also, the releaseof coal mix effluents directly into the streams has been noticed at north-western (Yellur), south-western (Yellur, Padebetu, Tenka) and southern (Kolachur) sides.The irresponsible act of releasing untreated effluents (rich in salinity, heavy metals, hydrocarbons) is primarily responsible for contamination of water (ground and surface waters) and land resources. Due to these, higher accumulations of contaminants in the environment have affected human and livestock dependent on thewater bodies and agriculture fields. The severity of the contamination is felt even at coastal region which is over 4 km (as effluent contaminated water passes through the agriculture fields). The presence of zinc, cadmium, lead, iron, cobalt, nickel, copper, chromium, manganese in water samples in the core zone (within 2 km) and also in soil samples of buffer regions of TPP reveal heavy metal contamination with xenobiotic compounds.

The transport and dry disposal of coal ash (fly ash) has resulted in the dispersion of ash particulates and fugitive dust in the neighbourhood. Intermittent release of ash pond water to nearby stream (eventually joins the Shambhavi river) in Santhur village has contaminated to ground water resources. Apart from these, leakage of saline water into agriculture fields has enhanced the salinity affecting paddy yield. Agricultural crop lands have been abandoned due to low crop yield subsequent to TPP's contaminations. The indiscriminate disposal of synthetic substances used for coating of the GRP pipeline has also added to the soil contamination.

Socioeconomic survey of residents within 6 km zone reveals the impact on livelihood of people due to reduced crop productivity, higher instances of human and livestock health issues, damages to infrastructure, etc. which further corroborates the environmental impacts (water, soil and biotic elements) with the contamination of water, air and soil."13

The summary of findings in the report, records that as many as 47 affects have been observed on plants, vegetation, animals, fish and human beings, 5 impacts of contaminated water based on water sample analysis, contamination of air and environment caused by transportation in open trucks and dumping of dry coal ash, settlement of blackish particles settle on leaves, clothes, objects inside homes, food kept in open, etc. in core zone, salt deposits on leaves and roofing tiles, corrosion of tin roofing sheets, agriculture implements, etc. drying of leaves and leaf burn, etc. were noted. Impact on people's livelihood caused by various deleterious effects within 2 km radius, i.e., core zone, impact on live stock and impact on biodiversity had also been noticed. The study reveals that there was gross environmental mismanagement which, in our considered opinion, can be reasonably attributed to the casual manner in which the project had been cleared and barely monitored. There is no reason to doubt that this is a case of serial violations where the violator has been given a free run.

There are also other serious concerns raised by the Applicant in respect of the existing plant some of which we have pointed out in the earlier part of this order that ought to have been addressed first and deliberated by the MoEF&CC before granting the impugned EC dated 01.08.2017. It may be pointed out that addition of capacity of more than double the capacity of the existing plant will necessarily have to be considered in the light of the possible escalation of impact on the overall ecology and the environment of the area due to increase in the population load. It is an accepted position, that venturing for development activity on uncertain environmental ramifications would be fraught with risk. Precaution would be the need of the hour and sustainable development the goal with intergenerational equity as the guiding factor.

The conduct of the MoEF&CC in the entire episode does not appear to be above board. The Tribunal expresses grave anguish and concern which in our view ought to be corrected. We leave it upon the MoEF&CC to deal with this aspect as their wisdom may dictate.

With reference to O.A. Nos. 578/2018, 579/2018 and 580/2018 and, Appeal No. 176/2018, we take note of the fact that the Phase-I of the power plant has since been completed as both the units of 600 MW each have been synchronized with the power grid and, therefore, is already supplying power. We are conscious of the position that fait accompli situation should not and cannot be permitted. We have held so in the case of S.P. Muthuraman vs. Union of India & Ors.14 Unfortunately a fait accompli situation had arisen. The question that now arises is as to whether the Tribunal is helpless.

As noted already, in W.P. No. 21439/2005 while disposing off I.A. No. V/06 seeking for an interim relief, the Karnataka High Court had made it clear that all further action taken by the Respondents during the pendency of the Writ Petition will be subject to the result of the Writ Petitions. Keeping this in view, we have already held that all Environment Clearances, i.e., EC dated 20.03.1997, expansions dated 25.01.1999 and 09.09.2009 and the Comprehensive Environment Clearance dated 01.09.2011 as unlawful and, therefore, invalid.15

Justifiably, therefore, directions would be called for to remove the plant and order for restoration of the area and the environment. However, considering the facts and circumstances, the lapse of time and the fait accompli situation that has arisen, we are of the view that the interest of public will not be served in passing such order. The need of the hour is to explore such measures and steps that would mitigate the harm already caused in addition to ensuring that the plant operates strictly within the environmental norms. We thus invoke the "Polluter Pays" principle under Section 20 of the National Green Tribunal Act, 2010 and hold M/s. Udupi Power Corporation Ltd., the Respondent No. 5, project proponent, liable to pay Environmental Compensation which shall be assessed by a Committee of Experts. We, accordingly constitute such a Committee comprising of the following:

Senior Scientist, CPCB.

Senior Representative, IIT Chennai.

Senior Scientist, IIT Bangalore

CPCB shall be the nodal agency to coordinating amongst the Members for taking up the task.

The Committee shall assess the environmental damage on account of the environmental violations in the areas of fly ash management, ash pond, ambient air quality, fugitive emissions, etc. which undoubtly has caused severe damage to the environment and the ecology of the area and submit its report within three months.

Awaiting such report, we direct M/s. Udupi Power Corporation Ltd. to pay an interim Environmental Compensation ₹5 crores with the CPCB. The interim compensation would be subject to assessment of final damages by the Committee of Experts

This amount shall be deposited within a period of one month from hence.

The CPCB, in the meanwhile, shall utilize the interim compensation for restitution and remedial works for restitution of the environment including the possible plight of the people affected by the plant.

We make it clear that this amount shall be distinct from the other obligations of the project proponent under the Corporate Social Responsibility (CSR) or other obligations. We have already held that the Environmental Clearance dated 01.08.2017 for expansion by addition of 2x800 MW (Phase-II) Imported Coal based Super Critical Thermal Power Project at Padubidri Industrial Area in Village Yellur, Taluk Udupi, District Udupi, Karnataka, is bad inter alia for having failed to comply with the mandatory requirement of holding public hearing in terms of stage-III of the EIA Notification, 2006 read with Clause 7 (ii) thereof and item 1(d) of the schedule to the said Notification, we direct that there shall be no further activities in respect of the proposal for expansion.

Before embarking upon it, we deem it appropriate to direct the MoEF&CC to ensure that the project proponent carries out an additional EIA study, in terms of additional ToR prepared pursuant to our findings at paras 124 and 125 supra, followed by strict observance of procedure under Stage-III of EIA Notification, 2006 before being finally placed for appraisal by the EAC for consideration for grant of Environmental Clearance. Paras 124 and 125 referred to above are reproduced below for convenience:

"124. The question that then requires determination is, should the EC be quashed and set aside? After careful consideration, we find that further studies are unavoidable in order to ensure that the EIA is complete. We, therefore, direct as follows:

(i) Baseline data of the area in relation to the existing project of 2x600 MW shall be scrupulously collected;

(ii) In addition to the above, the State of Karnataka shall get a carrying capacity study of the area carried out.

(iii) The baseline data and the carrying capacity study shall be considered as components for studying the impact in relation to the proposed expansion;

(iv) Fresh public hearing shall be conducted strictly in accordance with the procedure laid down in Appendix IV of EIA Notification, 2006 ensuring wide participation of the people affected by the project.

After completion of the above, report shall be submitted to the MoEF&CC to be placed before the Expert Appraisal Committee for appraisal as required under stage IV of the EIA Notification, 2006.

The entire exercise shall be completed within a period of one year. In the meanwhile, EC dated 01.08.2017 shall remain suspended."

Interim report shall be submitted every three months, first of which shall be 17.07.2019.

It will only be after the aforesaid requirements are fully satisfied that the MoEF&CC shall consider the grant of Environmental Clearance. In the meanwhile, the impugned order dated 01.08.2017 shall remain suspended and shall not be acted upon.

List this matter after three months in terms of the above direction for consideration of the interim report and also to consider issuing directions for payment of compensation.

The Respondent No. 5 shall pay a sum of ₹1 lakh, as cost to the Applicant.

With the above directions, O.A. Nos. 578/2018, 579/2018, 580/2018 and, Appeal Nos. 176/2018 and 86/2018 are allowed in part.