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Judgment
Both the aforesaid applications have been filed by the same Applicants, seeking more or less identical reliefs. In Application No. 28/2011, apprehending, likelihood of being affected by the proposed Greenfield Port (Seema Port) going to be established at Sea Coast of Village Chhara, the Applicants invoked the jurisdiction of this Tribunal under Section 18 (1) & (2) read with Section 14 of the National Green Tribunal Act, 2010 inter alia praying as follows:-
"a) The proceedings of Public Hearing dated 19.11.2010 conducted for the proposed Green Field Port be quashed.
b) The Ministry of Environment and Forest be directed to reject the Application for the proposed projects outrightly according to the Section 8 of the Environment Impact Assessment Notification (EIA) , 2006, as the same is filed concealing the relevant facts and misrepresenting the facts in the EIA Report,
c) The Respondent No.4 be directed to file a composite Environment Impact Assessment report for the Green Field Port and the Proposed Thermal Power Project.
d) During the pendency and/or final disposal of the present petition, be pleased to stay further proceedings in connection with the environmental clearance with regard to proposed Green Field Port at Chhara, Taluka Kodinar, District Jundgadh and the Thermal Power Project at Kaj, Taluka Kodinar, District Junagadh of the respondent project proponent
e) To award the costs of this application.
f) To pass such other and further order/s in the interest of justice be granted.
The same Applicants apprehending to be affected by the Thermal Power Plant proposed to be installed by Respondent No. 4 (Shapoorji Paloonji & Company Ltd.), have preferred Application No. 9/2012 once again invoking jurisdiction under Section 18 (1)&(2) read with Section 14 of the NGT Act, 2010, Seeking following reliefs:-
i) "The proceedings of Public Hearing dated 15.6.2011 conducted for the Proposed Thermal Power Project at Village Kaj-Nanavada, Taluka Kodinar, District Junagarh be quashed.
ii) The Ministry of Environment and Forests be directed to reject the Application for the proposed projects outrightly according to the Section 8 of the Environment Impact Assessment Notification, 2006, as the same is filed concealing the relevant facts and misrepresenting the facts in the EIA Report.
iii) During the pendency and/or final disposal of the present Application be pleased to stay further proceedings in connection with the environmental clearance with regard to proposed Greenfield Port at Chhara, Taluka Kodinar, District Junagadh and the Thermal Power Project at Kaj, Taluka Kodinar, District Junagadh of the respondent project proponent.
iv) To award the costs of this application.
v) To pass such other and further order/s in the interest of justice be granted."
According to the Applicants, a Port has been proposed to be set up to import coal from Indonesia. The said coal is proposed to be transported by a conveyer belt to be used in the Thermal Power Plant, therefore, the said port is to be construed as a captive port for the Thermal Power Plant.
The submissions of the Applicants are, however, repudiated by Respondent No. 4. According to the said Respondent, the above said two projects are not composite to one another; on the other hand they are separate and independent projects.
In course of hearing it was found that not only parties in both the cases are same but also the facts and point of law involved. Therefore, by consent of the Counsel for the parties both the cases were heard together and are disposed of by this common judgment.
The mute question which needs determination in both the applications is as to whether the applicant has any cause of action as on date to approach this Tribunal or the applications are premature, because no order has been passed granting EC for either of the projects as yet and the matter is still under consideration, of the concerned Statutory Authorities.
According to the Applicants, the Environment Impact Assessment (EIA) reports prepared for both the projects do not disclose the correct facts and there is deliberate suppression and of concealment of vital informations. The same also contain false or misleading information with respect to material facts. Further, there has been violation in the process of public hearing, as prescribed under EIA Notification, 2006 as well as the Office Memorandum dated 19th April 2010 issued by the MoEF. It is submitted that in the event EC is granted ignoring aforesaid infirmities, there would be likelihood of infringement of legal right, vis-a-vis the environment.
On commencement of the hearing, a preliminary objection was raised by Mr. Sundram, Learned Sr. Advocate appearing on behalf of Respondent No.4., mainly on the ground that the purported Applications filed by the petitioner under Section 14 read with Section 18 of the NGT Act, 2010 are not maintainable as no decision has been taken nor permission / clearance has been accorded to establish any of the projects till date. In short, according to Mr. Sundram no cause of action has arisen as yet to invoke the appellate jurisdiction conferred upon this Tribunal under Section 18 of the NGT Act. Further the jurisdiction under Section 14 of the NGT Act also cannot be invoked as the mandatory requirements to invoke such jurisdiction are not satisfied.
To appreciate the arguments it would be prudent to refer to relevant provisions of Section 16(h) of the NGT Act, 2010 which reads as follows:-
"Tribunal to have appellate jurisdiction - Any person aggrieved by -
a) xxxx
b) xxxx
c) xxxx
d) xxxx
e) xxxx
f) xxxx
g) xxxx
h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986)."
In the case in hand, M/s. Seema Port Pvt. Ltd., the project proponent made an application on 3rd July, 2009 for setting up of a Port at Chhar in the State of Gujarat. The said application was dealt with in accordance with the provisions of Act and Rules and a review was conducted by the Environmental Appraisal Committee (EAC) on 21st December, 2009. In usual course of business, Terms of Reference (TOR) were issued by the MoEF on 22nd January, 2010 and public hearing was conducted in consonance with the provisions of EIA Notification 2006, on 19th November, 2010. Thereafter, it appears the Gujarat State Coastal Zone Management Authority reviewed the project on 27th February, 2012, and the matter now rests at that stage. In other words the process is still under progress and no final decision has been taken either by the Gujarat State Coastal Zone Management Authority or EAC, or by the MoEF, as on date.
So far as the Thermal Power Plant is concerned, Respondent No.4 M/s S.P. Energy (Gujarat) Pvt. Ltd. submitted the application in Form-I on 1st February, 2010. The same was reviewed by the EAC on 30th April, 2010, TOR were issued by the MoEF on 24th May, 2010, Public hearing was conducted on 15th June, 2011 and the matter is now pending before the MoEF for taking the decision with regard to Environmental Clearance.
It is clear from the narrations made above that, no decision to grant EC has been taken by the MoEF till date nor any order as contemplated under Sub-Section (h) of Section 16 of NGT Act has been passed, nor has any decision or direction been communicated, with regard to any of the aforesaid two Projects.
Section 16 of the NGT Act, authorizes a person aggrieved by an order granting environmental clearance for any project to file an appeal before this Tribunal within a period of thirty (30) days from the date on which the order or decision is communicated to him. In the case in hand, the MoEF admittedly has not taken any decision with regard to granting EC to either of the project and as such, the jurisdiction conferred upon this Tribunal under Section 16 of the Act cannot be invoked at this stage.
Being conscious of the aforesaid Position of law, Mr. Grover, learned Sr. Advocate appearing in both the applications submitted that the jurisdiction of this Tribunal under Section 14 of the NGT Act, 2010 being much broader, the two applications should be construed to be under the said Section. The position of law is no more resintegra that if a Court has jurisdiction to grant a relief, nomenclature of the application shall not stand on its way. In other words, if this Tribunal has power under Section 14 to grant the relief sought for there would be no impediment to proceed with the hearing of the case.
To appreciate the power of this Tribunal vested under Section 14 of the NGT Act, 2010 vis-à-vis the reliefs sought for in both the cases, it would be prudent to scan through the provisions of the said Section 14 for the sake of brevity and better understanding. Section 14 reads as follows:-
"Tribunal to settle disputes -
i) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule 1.
ii) The Tribunal shall hear the dispute arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
iii) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose."
The expression "substantial question" referred to in Section 14, has been defined under Section 2 (m) of the Act which reads as follows:
(m) "Substantial question relating to environment" shall include an instance where:-
(i) There is a direct violation of a specific statutory environmental obligation by a person by which:-
(A) The community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or
(B)The gravity of damage to the environment or property is substantial; or
(C) The damage to public health is broadly measurable;
(ii) The environmental consequences relate to a specific activity of a point source of pollution."
According to Mr. Grover, learned Sr. Advocate, a combined reading of Section 14 and 2 (m) leads to a conclusion that violation of any specific Statutory obligation which has direct access to the cause and which is likely to affect the community at large can be raised before this Tribunal invoking jurisdiction under Section 14 of the Act.
Expanding the said argument Mr. Grover further submitted that the appellate power of the Tribunal to exercise jurisdiction under Section 16 (h) being specific, under the said provision the order granting environmental clearance can be assailed by a person aggrieved, On the other hand, the jurisdiction under Section 14 is much broader and deals with cases where substantial question relating to the environment, which arises out of implementation of the enactments listed in schedule 1 of the Act, are concerned.
Referring to the facts of the case, Mr Grover further submitted that in the case in hand there has been gross violation of the process of public hearing as prescribed under EIA Notification, 2006 as well as the office memorandum dated 19th April, 2010 issued by the MOEF. The project proponent, in both the cases, had not approached the authorities with clean hands, in as much as, they have concealed material facts and furnished concocted particulars. There was also gross violation of the procedure prescribed for conducting the public hearing. According to Mr. Grover, if the MoEF on the basis of such improper particulars grants EC, there is likelihood of direct violation of specific Environmental obligations, thereby causing, or likelihood of causing environmental disorders.
The submissions made on behalf of the Applicants are strongly repudiated by Mr. Sundram Learned Sr. Advocate appearing for R-4. According to Mr. Sundram, in order to invoke jurisdiction under Section 16, this Tribunal has to be satisfied that the relief sought for involves an issue that would fall within the realm of being a civil case, i.e., where a legal right is accrued and a corresponding legal obligation is anticipated. Further, the said Civil issue should involve a substantial question relating to environment and such questions should arise out of the implementation of the enactments specified in Schedule (I) to the Act.
''Substantial question related to environment", as defined under Section 2 (m) of the Act, means and connotes the environmental consequences relating to an activity or point of source of pollution. It is, further submitted that a mechanism having been established in terms of the Statute, under the EIA Notification, 2006, consisting of competent Authorities, who are empowered to look into every aspect, conduct studies and assess the impact, culminating in grant of environment clearance by the MoEF, seeking relief from this Tribunal at this stage is rather premature and it is a fit case where both the Appeals should be dismissed in limini, on that ground itself.
Heard Learned Counsel for the parties diligently and perused the relevant documents annexed to the pleadings meticulously. There is no dispute that the paraphernalia as well as formalities for considering as to whether E.C. should be granted to both the projects or not, are still in process and till date the MoEF has neither taken any decision nor passed any order.
The Environment Protection Act is a self-contained legislature. In consonance with the provisions of the said Act, and Rules, Notifications are issued, laying down a full-fledged procedure required to be adopted for imposing restrictions and prohibitions on the new project or activities, or on the expansion or modernisation of existing Projects or activities based on their potential environmental impacts as indicated in the Schedule to the Notification. It is well settled that unless prior environmental clearance is granted in accordance with the objectives of National Environment Policy, no new project can commence. Environmental Impact Assessment Authority is constituted by the Central Govt. in consultation with the State Govt. or Union Territory Administration concerned under Sub Section (3) of Section 3 of the Environment (Protection) Act 1986, for conducting the assessment and impacts.
For the sake of better appreciation, Clause-2 of the Notification dated 14th September, 2006, is quoted herein below:-
2."Requirement of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental cleanse from the concerned regulatory authority, which shall hereinafter referred to 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 modernisation.
(iii) Any change in product-mix in an existing manufacturing unit included in Schedule beyond the specified range.
As per the provisions of the EIA Notification approval for the projects culminating in granting of Environmental Clearance, follow a series of steps as outlined below:
(a) Submission of Application along with Form 1/Form 1A by the project proponent
(b) Preparation and submission of an Environmental Impact Assessment Report as per the Terms of Reference [ToRs] for the project given by the Expert Appraisal Committee
(c) Notice by the State Pollution Control Board for a mandatory Public Hearing to be published in at least two local newspapers
(d) Access to the Executive Summary and EIA Report at designated places
(e) Conducting the Public Hearing in a manner which ensures the widest possible participation of the affected people.
(f) Detailed Scrutiny of the EIA report and the proceedings of the Public Consultation by the Expert Appraisal Committee and the Ministry of Environment and Forests
(g) Grant of approval or rejection of application by the Ministry of Environment and Forests, after consideration of the pros and cons and the impact or irrevocable harm likely to be caused to the biodiversity, environment & forests.
In the case in hand admittedly, the procedure / assessment under EIA Notification 2006, read with the Environment (Protection) Act and Rules for determining as to whether EC can be granted to the Project or not is in progress. The Competent Authorities under the said Notification are required to conduct scrutiny of the projects, and consider the pros and cons stage by stage. The persons having interest or likely to be effected / aggrieved if the Project is set up have access to take part and put forward their grievances. In course of assessment, the Competent Authorities are authorised to take into consideration the grievances put forth before them. Elaborate procedure is also laid down for public consultation and public hearing in which the inhabitants of the localities and others who are likely to affected by the projects have a right to canvas their grievances. The EIA Notification, 2006, provides a complete and self-contained machinery to look into the grievances of persons aggrieved who apprehend and / or likely to be affected. The Authorities shall also in course of assessment, work-out the impact of the projects on the environment, and arrive at such conclusions as would be just and proper and in consonance with law.
There is no allegation that the Competent Authorities are not following the mandatory requirements laid down in the EIA Notification, 2006 or any of the provisions of the Acts and Rules. The only grievance which is made out before this Tribunal is that the Project Proponent had suppressed vital facts and furnished erroneous and concocted materials and that the public hearing has not been conducted in proper perspective. But then all these eventualities can be considered by the Committee consisting of Competent Authorities, in course of the assessment process. The Respondents have also an opportunity, to put forth their grievance before the Authorities. Therefore, the allegations levelled by the Applicants, appears to be more on the basis of surmise and conjecture. Admittedly, no EC has been accorded to any of the projects and it is not known whether the same will be granted or not. Thus, as on date there is no apprehension or likelihood of any damage being caused to the environment. That apart, Applicants are not left remediless. In the event EC is granted by the Competent Authority the said decision can be assailed in Appeal.
In the aforesaid scenario, as the applications filed by the Project Proponent (R-4) for granting EC for the Projects are still under consideration, we feel any interference by us at this stage, in the midst of decision making process would amount to pre-judging the issues. Therefore, we refrain from entering into the arena of controversy, as the same, according to us, would be premature.
The jurisdiction of Section 14 of the Act, can be invoked only if the matter in controversy is not under consideration of any Competent Authority and or by afflux of time a project is likely to cause harm to the environment. None of the aforesaid eventualities are satisfied in the present case. We are, therefore, not inclined to entertain these applications and dispose of the same granting liberty to the Applicants to file detailed objection before the Expert Appraisal Committee (EAC) and or before the MoEF as the case may be. We, further, direct that in the event such objections are filed by the Applicants, the same should be considered and only thereafter a decision should be taken either for granting of Environment Clarence to the aforesaid two projects or not. We make it clear that we have not examined the merits of the case nor considered the submissions as to whether the two projects are composite to each other or are independent. The Authorities have the liberty to decide the said issue also in accordance to law and materials available.
Both the Appeals are accordingly disposed of, granting liberty to the Applicants to approach this Tribunal once again if exigencies arise. Parties shall bear their own cost.