WP/5742/2006 of Capt.J.Rama Rao I.N.(Retd.) Vs Ministry of Environment and Forests, represented by its on 27 December 2006

HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE

AND

HON’BLE SHRI JUSTICE C.V.NAGARJUNA REDDY

WRIT PETITION No.5742 OF2006

Between:Capt. J.Rama Rao I.N. (Retd.) …PetitionerANDThe Union of India,represented by its Secretary to Governmentof India, Ministry of Environment and Forests,New Delhi and others. ...Respondents: O R D E R :Counsel for the Petitioner : Sri K.S. MurthyCounsel for respondent No.1 : Sri A.D.N.RaoCounsel for respondent No.2 : Government Pleader for Environment & Forests. Counsel for respondent No.3 : Sri S.V.BhattCounsel for respondent No.4 : Sri D.Prakash Reddy, Senior Advocate, assisted by Smt.K.Bindu.Counsel for respondent No.5 : None.

27[th] December, 2006

Per G.S. Singhvi, C.J.

Captain J. Rama Rao, a retired Naval Officer, who is keenlyinterested in protecting ecology and environment and also participatedin the public hearings held on 19-08-2003 pursuant to the directiongiven by this Court in Writ Petition No.17017 of 2003, has filed thispetition in public interest for grant of a declaration that the action of theofficial respondents in entertaining the application made by UraniumCorporation of India Ltd. (for short, ‘the Corporation’) for uraniummining at Lambapur-Peddagattu project in Nalgonda District isunconstitutional. He has further prayed for quashing letter dated 21-12-2005, vide which the Ministry of Environment and Forests,Government of India granted environmental clearance for uraniummining. During the pendency of the writ petition, the petitioner filedWPMP.No.24905 of 2006 for grant of leave to amend paragraphs 23and 24 of the affidavit so as to enable him to seek quashing ofcorrigendum dated 13-6-2006. That application was allowed by theCourt on 22-9-2006.

The petitioner claims to have assisted the Andhra PradeshPollution Control Board (for short, ‘the Board’) in formulating rules foruse of plastic bags, control of noise pollution and bio-medical wastemanagement. He also claims to have been appointed asCommissioner to assist the High Court in the matter of chlorine gasleakage in the outskirts of Hyderabad. He is the Chairman of Forumfor Better Hyderabad, which is engaged in propagating the cause ofprotection of water bodies, public parks and open spaces in and

around Hyderabad. He is also the Chairman of Energy ConservationMission constituted by Institution of Engineers (India), Andhra PradeshState Chapter and Member of Local Area Environment Committeeconstituted by the Supreme Court for monitoring the hazardous wastemanagement. In the affidavit filed by him, the petitioner has referred toEnvironment Impact Assessment (EIA) Notification dated 27-1-1994 issued by the Government of India under Sections 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 (for short, ‘the 1986 Act’)read with clause (d) of sub-rule (3) of Rule 5 of the Environment(Protection) Rules, 1986, as amended vide Notifications dated 4-5-1994, 10-4-1997, 13-12-2000, 1-8-2001, 21-11-2001 and 13-6-2002 and averred that in complete violation of the requirementsspecified in Schedules I and II appended to EIA Notification, theGovernment of India entertained and sanctioned the application madeby the Corporation for uranium mining at Lambapur-Peddapur Project. He has referred to communication No.J-11015/220/2005-1A.11(M), dated 21-12-2005 issued by the Government of India, Ministry ofEnvironment and Forests for grant of environmental clearance toLambapur-Peddagattu Uranium Mining Project of the Corporation forproduction of uranium ore and averred that notwithstanding theconditions enumerated in that communication, the decision of theGovernment of India should be nullified because the same does notreflect consideration of the objections raised by him and large numberof environmentalists. In paragraphs 15 to 17 of his affidavit, thepetitioner has averred that in compliance of the direction given by theHigh Court, public hearings were held on 19[th] August, 2003 atPeddagattu and P.A. Pally Mandal headquarters, but the same wasfarcical, inasmuch as, the changes allegedly made in the EIAdocument by the Corporation were not made available to the public and other interested persons and no officer of the Corporation cameforward to explain the issues raised by the objectors. In paragraphs 20and 21 of his affidavit, the petitioner has averred as under:

“20. I respectfully submit that the EnvironmentalClearance granted to the Uranium Mining Project by MoEFletter dated 21[st] December, 2005 is liable to be setaside because it is “subject to directives of the Hon’bleSupreme Court of India regarding location of polluting industrywithin 10 km of the lakes” while stating that Nagarjuna Sagaris at a distance of 1.6 km from the mining site. It also violatesthe Supreme Court judgments where it was declared that rightto access safe drinking water is fundamental right to life andArticle 21 of Constitution of India. The precautionary principle,which is an accepted touchstone for dealing with potentialdangers of polluting activity, covers the present issue. TheHon’ble Supreme Court, in SCC 2001 (2) p.62, while dealingwith a plant for production of castor oil derivatives, which wasproposed to be set up within 10 km of Himayat Sagar, one ofthe drinking water sources for Hyderabad found it to be inviolation of the right to access safe drinking water. TheSupreme Court specifically held that whatever may beprecautions and control measures, there is likelihood ofbreakdown of the safety/control measures and no risk can betaken while dealing with water bodies which supply drinkingwater. Nagarjuna Sagar is turning to be a main water sourceof drinking water to many villagers of Nalgonda District (whichsuffer from deadly fluoresces) as well as twin cities ofHyderabad and Secunderabad apart from being the source forirrigation and drinking waters for Khammam, Krishna, Gunturand Prakasam districts. Thus, the potential polluting activity ofuranium mining cannot be permitted in the vicinity ofNagarjuna Sagar. In fact, it will adversely affect the surfaceand ground water in and around Nagarjuna Sagar due tocontaminated storm water runoff and seepage. One heavycloud burst during the night like the recent monsoon in 2005,will let in the radioactive and toxic material into NagarjunaSagar. A s Nagarjuna Sagar waters are used for irrigation in five districts, the radio active and toxic materials are likely toget into food-chain having long term adverse impacts on lifecycle and environment.

21. I submit that R-1 has issued environmental clearanceto hazardous uranium mining project in close vicinity ofNagarjuna Sagar and to be followed by permissions from R-2and R-3. I respectfully submit that till this date we havenot been informed about the objections raised by us regardingthe inadequate and false information given along withapplication and also fundamental issues. To say that catchdrains and silt points will be constructed to control run off fromthe mines spread over 468 hectares, even without knowing themagnitude of the problem, is nothing but to mislead and itcannot be left to the whims of some officers. As there isurgency which involves the Nagarjuna Sagar Project,constructed at considerable cost and is the life-line for about20 million people in the State, we seek intervention of theHon’ble Court to save it and lakhs of people. The roads arebeing laid and money is being spent and hence there isurgency.”

Conclusion

In the counter affidavit filed by Sri N.M.Behl, Deputy GeneralManager (Civil) of the Corporation, an objection has been taken to themaintainability of the writ petition on the ground that an effectivealternative remedy is available to the petitioner under Section 11 of theNational Environment Appellate Authority Act, 1997 (for short, ‘the1997 Act’). The deponent has then pleaded that the writ petition isliable to be dismissed because similar petition filed by ‘SAMATA’, anon-profit voluntary organization for restraining the Government ofIndia from granting environmental clearance to the project of theCorporation, which was registered as Writ Petition No.19852 of 2003,was dismissed by the Court on 10-9-2003. Sri Behl has referred toorder dated 15-4-2004 passed by the Supreme Court in Writ Petition(Civil) No.188 of 1999 - B.L.Wadhera v. Union of India to show that challenge to the grant of environmental clearance to the Corporationfor uranium mining at Jaduguda in East Singhbhum District ofJharkhand State, on the ground that the radiation caused due to suchmining will have adverse impact on the local population andenvironment, was negatived by the Supreme Court. In paragraphs 11to 21 and 25 of his affidavit, Sri N.M.Behl has highlighted therequirement of uranium for producing atomic energy, which, in turn, isused for various purposes including production of electricity. He hasalso averred that the Corporation ensures strict compliance with thesafety norms and the basic objective of waste management forprotection of human health and environment. On merits, Sri Behl hasdenied the petitioner’s assertion that the Corporation had concealedthe facts or made any mis-statement for the purpose of obtainingenvironmental clearance. He has also denied the allegation that therepresentatives of the Corporation did not disclose the details of theproject at the public hearing held on 19-8-2003. According to Sri Behl,Sri Prasad, a consultant working with the Corporation explained theproject in Hindi, and Telugu translation was provided by SriMadhusudan Rao, Chief Superintendent (Mechanical). This wassupplemented by Sri S.K. Malhotra, Head of Public AwarenessDepartment, Department of Atomic Energy, and the issue relating toviolation of the guidelines framed by the Government of India, whichwas raised by Prof.Purushotham Reddy, was clarified by SriK.Srinivasa Reddy, Environmental Engineer of the Board.

In the affidavit filed on behalf of the Government of AndhraPradesh, Smt. Janaki R.Kondapi, Principal Secretary to Government,Environment, Forests, Science and Technology Department, hasaverred that public hearings were held in compliance of order dated14-8-2003 passed by the High Court in Writ Petition No.17017 of

2003. Thereafter, Technical Committee of the Board reviewed theproject and recommended for environmental clearance duly stipulatingcertain specific conditions. However, Consent For EstablishmentClearance Committee in its meeting held on 28-1-2004, decided torefer the matter for suitable guidelines/directions. After considering therecommendations of the committee, the Government advised theBoard to constitute Technical Advisory Committee comprising expertsto re-examine the matter. On receipt of further recommendations, thematter was forwarded to the Government of India, and the Ministry ofEnvironment and Forests issued environmental clearance with thespecific condition, which is subject to the Supreme Court’s directiveagainst location of polluting industries within 10 km radius of the lakes.

In the counter affidavit filed on behalf of the Union of India, Sri Satish Garkoti, Additional Director, Impact Assessment Division,Ministry of Environment and Forests, has averred that on arepresentation received from the Corporation, the Ministry has issuedcorrigendum dated 13-6-2006 and replaced specific conditionNo.1 enumerated in letter dated 21-12-2005.

The petitioner has filed rejoinder affidavits to all the writtenstatements and reiterated his grievance against the environmentalclearance granted by the Ministry of Forests and Environment to theCorporation enabling the latter to undertake mining of uranium ore. Hehas also pleaded that the remedy of appeal provided under Section 11of the 1997 Act is illusory because the Tribunal is not functioning since2003 and from September, 2003 only one Member is available.

Sri A.D.N. Rao, learned counsel for respondent No.1, who wasjoined by Sri D. Prakash Reddy, Senior Counsel appearing forrespondent No.4 argued that the remedy of appeal available to thepetitioner under Section 11 of the 1997 Act is an effective alternative remedy and, therefore, the High Court should decline to entertain thepetitioner’s challenge to the environmental clearance granted by theGovernment of India for the project in question. Learned counselemphasized that the High Court does not have adequate expertise todeal with technical matters like the present one and, therefore, thematter should be left to be decided by an expert body constituted underthe 1997 Act. Sri A.D.N. Rao produced Notification dated 26-5-2006issued by the Government of India, whereby Dr. I.V.Manivannan andSri Kaushlendra Prasad were appointed as Members of the AppellateAuthority for a period of three years, and argued that statutory remedyof appeal available to the petitioner under Section 11 cannot betreated as illusory merely because for some time the Tribunal was notfunctional. Both the learned counsel laid considerable emphasis onthe fact that the environmental clearance granted by the Ministry ofEnvironment and Forests, Government of India can become effectiveonly on fulfillment of the conditions specified in letters dated 21-12-2005 and 13-6-2006 and argued that the apprehension expressed bythe petitioner regarding threat to the environment should be declaredas unfounded.

Sri K.S. Murthy, learned counsel for the petitioner, heavily reliedon order dated 29-7-2005 passed by the Tribunal in Appeal No.4 of2005 and argued that in view of the adjudication already made by theTribunal on the tenability of appeal filed in similar matter, the petitionershould not be compelled to take recourse to the remedy of appealunder Section 11 of the 1997 Act. He further argued that evenotherwise, the High Court should not relegate the petitioner to thealternative remedy of appeal because the issues raised in the writpetition concern the lives of hundreds and thousands of people andimportant water bodies, which are likely to be polluted by radiation. In support of his argument, Sri Murthy relied on the judgments of theSupreme Court in S.J.S. Business Enterprises (P) Ltd. v. State ofBihar[[1]]and Durga Enterprises (P) Ltd. v. Principal Secretary,Govt. of U.P.[[2]] He then referred to the judgment of the Supreme Court in A.P. Pollution Control Board II v. Prof. M.V.Nayudu[[3]]andargued that the environmental clearance given to the Corporationshould be declared as nullity because the same is violative of theconditions laid down by the Supreme Court against the establishmentof industry within 10 km. of the lakes.

In his rejoinder, Sri A.D.N. Rao referred to the affidavits of thepetitioner and submitted that he clearly falls within the ambit of theexpression “any person aggrieved” because he has not only objectedto the grant of environmental clearance for the project of theCorporation, but also participated in public hearing held on 19-8-2003pursuant to the direction given by the High Court in Writ PetitionNo.17017 of 2003. He further submitted that if this Court comes to theconclusion that the remedy of appeal is an effective alternative remedyand the petitioner is relegated to the said remedy, then the Tribunalmay be directed to decide the appeal of the petitioner on merits.

We have given serious thought to the respective arguments.The 1997 Act was enacted by the Parliament to provide forestablishment of a National Environment Appellate Authority to hearappeals with respect to restriction of areas in which any industries,operations or processes or class of industries, operations or processesshall not be carried out or shall be carried out subject to certainsafeguards under the 1986 Act and for matters connected therewith orincidental thereto. Sections 3 of this Act provides for establishment ofNational Environment Appellate Authority. Section 5 specifies the qualifications for appointment as Chairperson, Vice-Chairperson orMember. The Chairperson of the Appellate Authority must be aperson, who has been a Judge of the Supreme Court or the ChiefJustice of a High Court. In terms of sub-section (2) of Section 5, aperson is not be qualified for appointment as a Vice-Chairpersonunless he has for, at least, two years held the post of a Secretary to theGovernment of India or any other post under the Central Governmentor State Government carrying a scale of pay, which is not less than thatof a Secretary of the Government of India, and has expertise orexperience in administrative, legal, managerial or technical aspects ofthe problems relating to environment. Sub-section (3) declares that aperson shall not be qualified for appointment as a Member unless hehas professional knowledge or practical experience in the areaspertaining to conservation, environmental management, law orplanning and development. It is, thus, evident that NationalEnvironment Appellate Authority comprises of persons who haveexpertise in the field of law, administration, management, environment,conservation, planning and development. Section 11 of the 1997 Act,which provides for remedy of appeal reads as under:

“11. Appeals to Authority:-

(1) Any person aggrieved by an order grantingenvironmental clearance in the areas in which any industries,operations or processes or class of industries, operations andprocesses shall not be carried out or shall be carried outsubject to certain safeguards may, within thirty days from thedate of such order, prefer an appeal to the Authority in suchform as may be prescribed:

Provided that the Authority may entertain any appealafter the expiry of the said period of thirty days but not afterninety days from the date aforesaid if it is satisfied that theappellant was prevented by sufficient cause from filing theappeal in time.

(2) For the purposes of sub-section (1), "person"means- (a) any person who is likely to be affected by the grantof environmental clearance:

(b) any person who owns or has control over the projectwith respect to which an application has been submitted forenvironmental clearance;

(c) any association of persons (whether incorporated ornot) likely to be affected by such order and functioning in thefield of environment; (d) the Central Government, where the environmentalclearance is granted .by the State Government and the StateGovernment, where the environmental clearance is granted bythe Central Government; or (e) any local authority, any part of whose local limits iswithin the neighbourhood of the area wherein the project isproposed to be located.

(3) On receipt of an appeal preferred under sub- section (1), the Authority shall, after giving the appellant anopportunity of being heard, pass such orders, as it thinks fit.

(4) The Authority shall dispose of the appeal withinninety days from the date of filing the appeal:

Provided that the Authority may, for reasons to berecorded in writing, dispose of the appeal within a furtherperiod of thirty days.”

A reading of the above reproduced section makes it clear thatany person aggrieved by an order granting environmental clearance inthe areas in which any industries, operations or processes, or class ofindustries, operations and processes are not to be carried out subjectto certain safeguards, can prefer an appeal within thirty days from thedate of order. In terms of proviso to Section 11(1), the AppellateAuthority can entertain any appeal after expiry of the period oflimitation, but not beyond the period of ninety days if it is satisfied thatthe appellant was prevented by sufficient cause from filing the appeal.

Since the 1997 Act is a special statute, the remedy of appealavailable to an aggrieved person has to be treated as an effectivealternative remedy. The question raised in this writ petition is highlytechnical, which cannot be decided by the High Court due to lack ofexpertise in the field of science and technology etc. This appears tobe the reason why a coordinate Bench of this Court had, whiledismissing Writ Petition No.19852 of 2003 filed by ‘SAMATA’ (avoluntary organization) for issue of a direction to respondent Nos.1 and3 to reject the application of the Corporation as premature, observedthat even against the order passed for grant of clearance, the remedyof appeal is available to the affected persons.

In view of the above, we hold that an effective alternative remedyis available to the petitioner for questioning the environmentalclearance granted by the Government of India.

The judgments of the Supreme Court on which reliance hasbeen placed by the learned counsel for the petitioner are clearlydistinguishable. In S.J.S. Business Enterprises (P) Ltd. v. State ofBihar (supra), the Supreme Court took note of the fact that theappellant had filed suits and then filed writ petition under Article 226 ofthe Constitution of India, but had withdrawn the same much beforehearing of the writ petition and held that the High Court was notjustified in dismissing the writ petition. In the second case, theSupreme Court held that if the writ petition had been admitted andremained pending for 13 years, the petitioner should not be non-suitedon the ground of existence of alternative remedy. In the case beforeus, the objection to the maintainability of the writ petition has beentaken at the threshold of the proceedings. Therefore, it is not possibleto ignore the objection and entertain the writ petition ignoring thefactum of availability of alternative remedy to the petitioner.

The argument of Sri K.S.Murthy that in view of order dated 29-7-2005 passed by the Tribunal in Appeal No.4 of 2005, theappeal filed by the petitioner would be dismissed, is based on amisconceived assumption that the appellant does not fall within theambit of the term ‘any person aggrieved’. The statement made by SriA.D.N. Rao, learned counsel for respondent No.1 should be sufficientto allay this apprehension of the petitioner. Even otherwise, we areprima facie convinced that the expression “any person aggrieved”appearing in Section 11 is of wide import. It takes within its fold aperson like the petitioner who has shown keen interest in protectingenvironment and has throughout been opposing the grant ofenvironmental clearance to the Corporation for uranium mining andhas also participated in the public hearing held in compliance of thedirection given by the High Court would fall within the ambit of the saidexpression.

In view of the above discussion, we hold that the remedy ofappeal available to the petitioner under Section 11 of the 1997 Act isan effective alternative remedy and there is no extraordinary reason formaking a departure from the settled rule that the High Court will notentertain writ petition under Article 226 of the Constitution if aneffective alternative remedy is available to the petitioner.

In the result, the writ petition is dismissed with liberty to thepetitioner to prefer an appeal under Section 11 of the 1997 Act. If suchan appeal is filed within fifteen days from today, then the same shall beentertained by the Tribunal and decided on merits. Respondent Nos.1and 4 shall not be entitled to raise objection of limitation or any othertechnical objection to the maintainability of the appeal.

27[th] December, 2006.

ARS

[1](2004) 7 SCC 166(2004) 7 SCC 166

[2](2004) 13 SCC 665(2004) 13 SCC 665

[3](2001) 2 SCC 62(2001) 2 SCC 62

G.S. SINGHVI, C.J.

C.V. NAGARJUNA REDDY, J.