Jeet Singh Kanwar and Another Vs MoEF and Others

JUDICIAL AND EXPERT MEMBERS: Shri Justice V.R. Kingaonkar, Dr. P.C. Mishra, Shri P.S. Rao and Shri Ranjan Chatterjee

Keywords:

Application

Date: 16th April, 2013

This is an Appeal filed by two villagers, Jeet Singh Kanwar and Vinod Kumar Pandey, who are inhabitants of Village Dhanras and Chhuri, respectively, situated on the outskirts of Korba Town in the State of Chhattisgarh. They challenged the order dated 18th January, 2010 whereby Ministry of Environment and Forest (Respondent No. 1) granted Environmental Clearance (for short EC) to the proposal for installation and operation of a Power Plant proposed by M/s. Dheeru Powergen Private Limited. The proposal was for installation and operation of 3 x 350 MW coal-based Thermal Power Plant within the boundary limits of Village Dhanras. The Respondent No. 2 is the State Environment Conservation Board (for short CECB) of Chhattisgarh State.

M/s. Dheeru Powergen Private Limited is a Company incorporated under the Company Act, having its main office at Sri Thyagaraya Road, T. Nagar, Chennai (Tamil Nadu). It will be referred to hereinafter as “Project Proponent”. The Project Proponent submitted proposal for setting up a coal-based Thermal Power Plant of 3 x 350 MW capacity at Village Dhanras.

According to the Appellants, the mandate of various guidelines in Public Consultation Process set out, vide EIA Notification dated 14th September, 2006 issued by the Ministry of Environment and Forest (MoEF), have not been complied with and even flouted while granting the EC. The Executive Summary of EIA Report in vernacular language as well as the full environment impact assessment (for short EIA) Report were not made available thirty (30) days prior to the scheduled date of public hearing. Only the Executive Summary in English language was made available just one week prior to the date of public hearing. The public hearing was not held at the site of the proposed project nor in the proximity thereof, but was held at a distance of about 8 K.M. from the project site, in the office of Tehsildar-cum-SDM, Katghora. The Appellants also alleged that the Expert Appraisal Committee (for short EAC) did not apply its mind to the concerns/objections ventilated during the course of the public hearing as well as to other relevant issues.

According to Learned Counsel for the Appellants, the impugned order of EC is bad in law if “Precautionary principle” and principle of “Sustainable development” are applied.

Following points, as culled out from the pleadings and contentions of the parties, are required to be answered:

(i) Whether the public hearing held on 19th August, 2009 at Tehsil Office premises, Katghora (Dist. Korba) was illegal due to non-compliance of the guidelines set out vide the EIA Notification dated 14th September, 2006 and therefore the impugned order of the MoEF is liable to be struck down?
(ii) Whether the EAC and the MoEF duly considered cumulative effect of the pollution in the area and probable addition of the load of the pollution on account of installation and operation of the proposed project of M/s. Dheeru Powergen Private Limited (Respondent No. 3)?

(iii) Whether the project site falls in the “Critically Polluted Area”?

(iv) Whether this is a fit case in which “Precautionary principle” and “Sustainable development” as envisaged under Section 20 of the National Green Tribunal Act, 2010 are attracted, in the facts and circumstances of the present case, and as such the EC deserves to be quashed?

Re Point No. (i)
The Environmental Clearance Regulations, 2006 provide for prior Environmental Clearance for commissioning of any industrial activity, as indicated in the Schedule appended to the Notification, in keeping with the National Environmental Policy (NEP). All the projects which fall under Category “A” in the Schedule are required to be processed and cleared by the MoEF. Thus, without Environmental Clearance (EC) granted by the MoEF no project falling within the Category “A” of the Schedule can be made functional. For the purpose of such a project, three (3) stages, namely, (i) Scoping, (ii) Public Consultation and (iii) Appraisal are set out for the purpose of processing.

Careful perusal of the record reveals that the public members were duly made aware of the nature of project and the EIA Report. It appears that the EIA Report was placed in the public domain prior to the scheduled date of public hearing. It is manifested that there was no serious defect in the process of public hearing. In any case, it cannot be said that the Appellants or inhabitants of the nearby villages were prejudiced due to any kind of procedural defect in the process of public consultation (hearing). The public hearing was held in a public place. There was participation of a large number of public members and the process was video-graphed during the course of hearing. The fact that premises of Tehsil Office, Katghora are at a distance of 8 km from the project site is of not much significance and cannot be considered as sufficient ground to vitiate the public hearing unless it was shown that it offered material hindrance in participative decision making mechanism. The judges are of the opinion that the public hearing was conducted in accordance with due procedure envisaged under the MoEF Notification dated 14th September, 2006. Hence, the point no. (i) is answered accordingly.

Re Points No. (ii), (iii) and (iv)
To clear the deck, it may be stated, at the outset, that Korba is, admittedly, a critically polluted area. The MoEF by Office Memorandum dated 13th January, 2010 imposed a temporary moratorium for a period up till August, 2010 on consideration of projects for Environmental Clearance, which are located in critically polluted areas/ industrial clusters in the country including Korba, identified by Central Pollution Control Board (for short CPCB) based on Comprehensive Environmental Pollution Index (CEPI). By communication dated 15th March, 2010, the list of critically polluted areas was published. In the said list, Korba (Chhattisgarh) is shown at serial no. 5.

So also, the project site falls within the critically polluted area being in the proximity of cluster of industrial projects like Vandana, Ash Pond of NTPC, etc. There is no merit in the argument that the project in question does not fall within the critically polluted area as demarcated by the Korba action plan dated 12th January, 2011 and the MoEF’s moratorium dated 13th January, 2010.

The precautionary principle requires the authority to examine probability of environmental degradation that may occur and result into damage. In the present case, it was utmost necessary to thoroughly examine the viability of the project in question, particularly, when there were identical coal- based power projects in the proximity of the area and the area is declared as critically polluted one. There cannot be any doubt about the fact that installation of such thermal power plant, based on consumption of coal as fuel, would cause additional pollution load in the surrounding area. The suggested safety measure of increasing height of the chimney may not prove to be sufficient to disperse such excessive pollutants. Such contingency called for caution before giving green signal to the Project which involved “ifs & buts”. In the Judges’ opinion, therefore, by applying precautionary principle, the EC should not have been granted by the MoEF. As stated before, the economic interest shall be put in the backseat when it is found that degradation of the environment would be long lasting and excessive. It need not be reiterated that the MoEF was aware of such environmental degradation and that is why the moratorium imposed earlier is still continuing. Ordinarily, nobody will take further risk of adding pollution load in the area which is already identified as critically polluted one. It appears that the MoEF did not seriously examine the relevant aspects prior to granting the EC in question.
The learned counsel for the Appellants in this regard relied upon the Judgments (refer to the original order), wherein the following principles were laid down:

• Environmental measures to be taken by the Government and statutory bodies must anticipate, prevent any attack which causes environmental degradation;
• Where there are threats of serious irreversible damage, lack of scientific certainty cannot be used as a reason for postponing measures to prevent such degradation;
• The onus is on the developer to show that his actions are environmentally benign.

Having considered the facts and legal position as above, the Judges are of the opinion that the impugned EC is granted without appropriate balancing act to see whether the project is proper and viable on the touchstone of principles of “Sustainable Development” and “Precaution” needed to avoid future disaster or irreversible environmental degradation.

The material points and aspects which are derivatives of the foregoing discussion may be summarized as follows:
(i) Before issuance of the TOR (Terms of Reference) on 25th April, 2008, the base line data was provided only for winter season of the year 2005-2006, though, the final EIA Report was submitted in August, 2009 which included the latest data for the summer of 2009.
(ii) Admittedly, Korba town and surrounding areas are critically polluted standing at 5th position in the list as per the MoEF notification.
(iii) Though, the MoEF imposed moratorium on grant of EC in Korba and surrounding area, on 13th January, 2010, yet granted impugned EC just after five (5) days thereof i.e. on 18th January, 2010. This is a material internal contradiction between the two actions i.e. to impose the moratorium on one hand and to breach the same on the other hand.
(iv) The EAC overlooked certain material issues which were highlighted during the public hearing.
(v) The MoEF used vague and rather slippery terms viz. “minimal damage” and implementation of R&R Plan, etc. in the impugned order of EC, which was granted before submission of R and R plan and CSR action plan.
(vi) The radial distance of 15 km from epicentre of Korba town is considered for the purpose of environmental impact. However, there is no particular yardstick shown as to how only 15 km is the area that may be identified as critically polluted one. The focus only on Korba township is improper and impact on the surrounding area of the proposed project ought to have been duly considered. The ash ponds of other projects like NTPC, Vandana, etc. are either at same distance or little away from the project site, even if radius of 15 km is deemed as proper yardstick for determination of critically polluted area and that the project in question is located in between such ash ponds. The ash ponds of other projects as well as the project in question are part and parcel of the same projects and cannot be segregated from the Thermal Power Plants.
(vii) Though, the EAC observed that the R&R details were general in nature yet even in the absence of such detailed R&R Plan the EC was recommended to MoEF and MoEF granted EC. R&R cannot be prescribed as post clearance condition.
(viii) The MoEF failed to anticipate probable ill impact of the project, in conjunction with the pollution level caused due to the other projects already existing in the surrounding area.
Taking a stock of the forgoing discussion, the Judges have arrived at the conclusion that the impugned order of the MoEF, granting EC to set up the coal-based Thermal Power Plant as sought by the Project Proponent is illegal and liable to be quashed. Needless to say, the Appeal succeeds and must be allowed.
In the result, the Judges allow the Appeal and quash the impugned order of EC dated 18th January, 2010.