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Bengaluru Development Authority V Mr. Sudhakar Hegde-Case Analysis

Decided by J. Dr. D Y Chandrachud and J. Hemant Gupta
The appeal was filed against the judgment of Principal Bench of National Green Tribunal (NGT) dated 8th February 2019 quashing the Environmental Clearance (EC) granted to the appellant for the development of an 8 lane Peripheral Ring Road (PRR) connecting Tumkur road to Hosur road and totaling a length of 65kms.

The NGT was of the view that the primary data upon which Environmental impact assessment (EIA) report was based was collected more than 3 years prior to its submission to the State Environment Impact Assessment Authority (SEIAA). NGT said that there was a substantial delay in the preparation of the EIA report and accordingly NGT directed the appellant to conduct a fresh rapid EIA and clarified that 'project proponent will not proceed on the basis of impugned Environmental clearance'. So, the appellant as a project proponent filed the appeal.

Facts
The Appellant formulated the PRR project scheme in 2005. A preliminary notification was issued in 2005 under section 17(1) & (3) of the Bangalore development authority (BDA) Act, 1976 to acquire certain land for execution project. And, the final notification was issued under section 19(1) of the BDA Act for the acquisition of proposed land in 2007.

The notification was challenged before the High court of Karnataka in Writ Proceedings (W.P No. 4550/2008) on the ground that the appellant had no authority to issue the notification and acquire land for the proposed PRR project. In July 2014, the High court dismissed the petition on the ground that the appellant was authorized under the BDA Act to acquire the land for the project in question. The Writ appeal against this was also dismissed on the ground of default in 2017.

The appellant as project proponent submitted the application to SEIAA in 2009 under EIA notification 2006 seeking prior EC for PRR. The terms of reference were prepared by the State Expert Appraisal Committee (SEAC). The final EIA report was placed before SEAC and SEIAA in 2014. EC was granted by SEIAA. But, Respondent filed appeal to NGT challenging grant EC to appellant. NGT by interim order granted interim stay of the EC.

NGT also noted the discrepancy between the submission of appellant and existence of reserved forest through which the proposed road was to pass. EIA report stated that only 200 trees would be cut, but report given by Horticulture and Forest department indicated that about 16,785 tress would be required to be felled for project. NGT stayed the operation of EC granted by SEIAA. NGT directed the appellant to conduct a rapid EIA.

Submissions By Appellant And Respondents
Appellant-Mr. Shyam Divan learned Senior Counsel appeared on behalf of appellant.

He contended that PRR project does not fall within the ambit of either the National Highways Act, 1956 or Karnataka Highways Act, 1964 and thus, appellant was under no obligation under the EIA notification 2006 to seek a prior EC for PRR project. He said the PRR project commenced from 2005 and EIA notification came into force in the year 2006 and the notification is prospective in nature.

Respondents- Mr. Nikhil Nayyar, learned Senior Counsel appeared on behalf of respondent

He contended that the term 'highway' or 'expressway' used in 2006 notification must be given a wide interpretation. And that there are significant omissions in EIA report concerning forest land, green cover, number of trees required to be cut. Material concealment by the project proponent invalidates the EC which was granted by SEIAA.

Issues Raised And Arguments Advanced
  1. Whether the PRR project commenced prior to the coming into force of 2006 notification.
    Court referred to EIA notification 2006. Para 2 of notification stated that all new projects or activities listed in the schedule to the 2006 shall require a prior EC. Notification stipulates an obligation to commence once a prospective site is identified and before the commencement of any construction or preparation of land.

    Court then referred to BDA Act. Section 2(a) defines 'authority' as the Bangalore Development Authority constituted under section 3 of the Act. Section 17 speaks regarding preliminary notification to be issued and section 19 speaks regarding final notification issued after receiving sanction.

    In the present case the final notification under section 19 was issued on 29th June 2007 i.e. after EIA 2006 notification came into force. Therefore, court held that project commenced after 2006 EIA notification.

    Court also observed that EIA notification serves as balance between development and protection of environment: there is no trade off between the two.
     
  2. Whether the PRR project falls within the scope of para 7(f) of the schedule to 2006 notification obliging the project proponent to seek a prior EC.
    In the present case, no notification was issued under National Highways Act, 1956 (NHA) and Karnataka Highways Act, 1964 (KHA) notifying the PRR project as a highway. Neither NHA nor KHA defines 'highway'

    Column 3 of para 7(f) of schedule includes new national highways and the expansion of existing national highways. In 2009 amendment, Column 5 para7(f) to the schedule stated that highways include expressways.

    Ministry of environment and forests constituted a committee headed by chairman (Shri JM Mauskar) to consider comments received for 2006 draft notification. From comment received it is perceived that Expressways are different from Highways, but highways include expressways.

    Indian Road Congress(in its 1934 recommendation) defined expressway- it is an arterial highway designed for high speed travel with the objective of reducing traffic and generally involving control of access.

    The primary purpose of the PRR project is to ease vehicular traffic congestion in the city. Thus, PRR project is an expressway falling within the ambit if para 7(f) of schedule to 2006 notification and therefore appellant under an obligation to seek a prior EC to implement project.
     
  3. Whether appellant has complied with the conditions stipulated in the 2006 notification and the OMs issued by the MoEF-CC from time to time.
    Under 2006 notification there are 4 stages to be conducted- screening, scoping, public consultation and appraisal.

    Court observed that questions framed by SEAC and responses filed by the appellant demonstrate that there existed serious deficiencies in EIA report submitted to SEAC that included outdated data, air analysis, soil quality.

    Court held that SEAC has clearly erred in recommending to the SEIAA the grant of EC despite the Non-compliance by the appellant with the prescribed time limit for the preparation of EIA report.

Other Observations Made By Court
  1. Accreditation of EIA consultant:
    the MoEF prescribed that it is mandatory for every consultant or PSU acting as an EIA consultant to get themselves registered under the accreditation scheme of National Accreditation Board of Education and training/ Quality Council of India. In the present case M/s Ranky Engineer pvt Ltd. lacked accreditation to serve as an EIA consultant for highway projects.
     
  2. Forest land:
    in EIA report of PRR project, it stated that no forest land is involved only diversion of 1.5hectares of forest land. But PRR project passes through the forest land in Jarakabande Kavalu forest area. Court observed that EIA process cannot be reduced to an Ad-hoc mechanism.
     
  3. Trees - appellant stated only 200-500 trees were required to be felled but, Deputy Conservator of forest revealed that around 16,785 trees were proposed to be cut for the purpose of executing the PRR project.
     
  4. Appraisal by SEAC:
    SEAC is required to conduct 'detailed scrutiny' of the application including EIA report and make categorical recommendations to the SEIAA either for grant of prior EC or reject. Court observed that SEAC failed to apply it's mind to abject failure of the appellant.
     
  5. Courts and Environment:
    protection of the environment is an inherent component of development and growth. Environmental protection goes beyond lawsuits. Referring to Article 21 and 14 of Constitution of India, court said there has been a failure of due process commencing from issuing of ToR and leading to the grant of the EC for PRR project.

Directions Issued By The Court
Court issued directions under Article 142 of Indian Constitution:
  • Appellant was directed to conduct a fresh rapid EIA proposed PRR project
  • Appellant was directed to hire a sector-specific accredited EIA consultant.
  • Appellant to submit the clearance to SEAC. SEAC there after assess the rapid EIA report only after complying 2006 notification and direction, only then shall it recommend to SEIAA the grant of EC of project.
  • No potential damage to be caused to the petroleum pipelines.
  • Order of NGT directing the appellant to conduct rapid EIA is upheld.

Conclusion
The courts have to adjust and reconcile between the imperative of preservation of the environment and the development of the economy. This case is a good example of how court has drawn a balance between preservation of the environment and sustainable development. Rightly, observed by the court that Environmental Impact Assessment serves as a balance between the development and protection of environment and there is no trade-off between the two and that EIA process cannot be reduced to an ad-hoc mechanism.

Award Winning Article Is Written By: Ms.Aishwarya Pawar
Awarded certificate of Excellence
Authentication No: SP26328191262-19-920

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