BENGALURU DEVELOPMENT AUTHORITY versus MR. SUDHAKAR HEGDE & ORS. on 17 March 2020

[2020] 5 S.C.R. 755

BENGALURU DEVELOPMENT AUTHORITY

v.

MR. SUDHAKAR HEGDE & ORS.

(Civil Appeal No. 2566 of 2019)

MARCH 17, 2020

[DR. DHANANJAYA Y CHANDRACHUD AND

HEMANT GUPTA, JJ.]

Environment (Protection) Act, 1986 – Environment (Protection)Rules, 1986 – Bangalore Development Authority Act, 1976 –Environment Impact Assessment Notification 2006 – Peripheral RingRoad Project – National Green Tribunal quashed the Environmentalclearance granted to the appellant for the said PRR project – NGTwas of the view that the primary data upon which the EnvironmentImpact Assessment report was based was collected more than 3 yearsprior to its submission to the State Environment Impact AssessmentAuthority – There was substantial delay in the preparation of theEIA report – Accordingly, the NGT directed the appellant to conducta fresh rapid EIA and clarified the project proponent not to proceedon the basis of the impugned Environmental clearance – On appeal,held: In the instant case, there was failure of due processcommencing from issuance of the Terms of Reference and leadingto the grant of the Environmental clearance for the PRR Project –The appellant, as project proponent sought to rely on an expiredTerms of Reference and proceeded to prepare the final EIA reporton the basis of outdated primary data – At the same time, the processleading to the grant of the Environmental clearance was repletewith contradictions on the existence of forest land to be divertedfor the Project as well as the number of trees required to be felled –The State Expert Appraisal Committee, as an expert body abdicatedits role and function by relying solely on the responses submitted toit by the appellant and failing to comply with its obligations underthe OMs issued by the MOEF-CC from time to time – The State ExpertAppraisal Committee failed in its fundamental duty mandated to dounder the 2006 Notification – Therefore, inter-alia, followingdirections issued: (i) The appellant directed to conduct a fresh rapidEIA for the proposed PRR project; (ii) The appellant, for the purpose

A

B

C

DE

F

G

H

Aof conducting the rapid EIA, hired a sector-specific accredited EIAConsultant; (iii) Appellant to ensure the requisite clearances undervarious enactments submitted to the State Expert Appraisal Committeeprior to the consideration by it of the information submitted by theappellant in accordance with the OMs issued by the MOEF-CCBfrom time to time; (iv) State Expert Appraisal Committee shallthereafter assess the rapid EIA report in accordance with the roleassigned to it under the 2006 Notification and if it is of the opinionthat the appellant has complied with the 2006 Notification as wellas the directions issued by the Supreme Court, only then shall itrecommend to the State Environment Impact Assessment AuthorityCthe grant of Environmental clearance for the proposed project –The order of the NGT directing the appellant to conduct a rapidEIA is upheld.

Disposing of the appeal, the Court

Conclusion

Disposing of the appeal, the Court

HELD: 1. The protection of the environment is premisedDnot only on the active role of courts, but also on robustinstitutional frameworks within which every stakeholder complieswith its duty to ensure sustainable development. A framework ofenvironmental governance committed to the rule of law requiresa regime which has effective, accountable and transparentEinstitutions. Equally important is responsive, inclusive,participatory and representative decision making. Environmentalgovernance is founded on the rule of law and emerges from thevalues of our Constitution. Where the health of the environmentis key to preserving the right to life as a constitutionally recognizedvalue under Article 21 of the Constitution, proper structures forFenvironmental decision making find expression in the guaranteeagainst arbitrary action and the affirmative duty of fair treatmentunder Article 14 of the Constitution. Sustainable development ispremised not merely on the redressal of the failure of democraticinstitutions in the protection of the environment, but ensuringGthat such failures do not take place. [Para 79][809-F-H; 810-A-B]

2. In the present case, there has been a failure of dueprocess commencing from issuance of the Terms of Referenceand leading to the grant of the Environmental Clearance for theHPeripheral Ring Road project. The appellant, as project proponent MR. SUDHAKAR HEGDE

sought to rely on an expired ToR and proceeded to prepare thefinal Environment Impact Assessment report on the basis ofoutdated primary data. At the same time, the process leading tothe grant of the EC was replete with contradictions on theexistence of forest land to be diverted for the project as well asthe number of trees required to be felled. [Para 80][810-B-C]

3. The State Expert Appraisal Committee, as an expert bodyabdicated its role and function by relying solely on the responsessubmitted to it by the appellant and failing to comply with itsobligations under the OMs issued by the MoEF-CC from timeto time. In failing to provide adequate reasons for itsrecommendation to the State Environment Impact AssessmentAuthority for the grant of an EC, it failed in its fundamental dutyof ensuring both the application of mind to the materialspresented to it as well as the furnishing of reasons which it ismandated to do under the 2006 Notification. [Para 81][810-D-E]

4. In this view of the matter, neither the process of decisionmaking nor the decision itself can pass legal muster. Equally,this Court must bear in mind the need to balance the developmentof infrastructure and the environment. This Court is of the viewthat while the need for a road project is factored into the decision-making calculus, equal emphasis should be placed on theprevailing state of the environment. The appeal which was filedbefore the NGT in 2015, was finally disposed of at a belated stageonly in 2019. [Para 82][810-E-F]

5. Bearing in mind the need to bring about a requisitebalance, this Court proposes to issue the following directionsunder Article 142 of the Constitution:

(i) The appellant is directed to conduct a fresh rapid EIAfor the proposed PRR project;

(ii) The appellant shall, for the purpose of conducting therapid EIA, hire a sector-specific accredited EIA consultant;

(iii) The appellant shall have due regard to the variousdeficiencies noted in the present judgment as well as ensure that AB

C

DE

F

G

H

Aadditional precautions are taken to account for the prevailingstate of the environment;

(iv) The appellant shall ensure that the requisite clearancesunder various enactments have been obtained and submitted tothe SEAC prior to the consideration by it of the informationBsubmitted by the appellant in accordance with the OMs issuedby the MoEF-CC from time to time;

(v) The SEAC shall thereafter assess the rapid EIA reportand other information submitted to it by the appellant inaccordance with the role assigned to it under the 2006 Notification.CIf it is of the opinion that the appellant has complied with the2006 Notification as well as the directions issued by this Court,only then shall it recommend to the SEIAA the grant of EC forthe proposed project. The SEAC and the SEIAA would lay downappropriate conditions concerning air, water, noise, land, biologicaland socioeconomic environment and other conditions it deemsDfit; and

(vi) The appellant shall consult the requisite authority toensure that no potential damage is caused by the project to thepetroleum pipelines over which the proposed road may beconstructed. [Para 83][810-D-H; 811-A-E]

E

State Bank of India v. V. Ramakrishnan (2018) 17 SCC394 : [2018] 10 SCR 974; Lafarge Umiam MiningPrivate Limited v. Union of India (2011) 7 SCC 338 :[2011] 7 SCR 954 – relied on.

Shreeranganathan K P v. Union of India 2014 ALL (I)FNGT Reporter (1) (SZ) 1 – referred to.

G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2566of 2019.

From the Judgment and Order dated 08.02.2019 of the NationalGreen Tribunal, Principal Bench, New Delhi in Appeal No. 27 of 2015.

H

BENGALURU DEVELOPMENT AUTHORITY v.MR. SUDHAKAR HEGDE

Shyam Divan, Sr. Adv., Anand Sanjay M. Nuli, Dharm Singh,Suraj Kaushik, Nanda Kumar K.B., Bhavratan, M/S. Nuli & Nuli, Advs.for the Appellant.

Nikhil Nayyar, Sr. Adv., T. V. S. Raghavendra Sreyas, Mrs. GayatriGulati Sreyas, Advs. for the Respondent.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

Index

A Introduction

B Submissions

C Issues

D Date of commencement of the PRR project E Applicability of the EIA Notification 2006

F Compliance with the procedure under the EIA Notification 2006

G Deficiencies in the EIA report

G.1 Accreditation of the EIA consultant

G.2 Forestland

G.3 Trees

G.4 Pipeline

H Appraisal by the SEAC

I Courts and the environment

J Directions

A Introduction

1. The present appeal arises from a judgment of the PrincipalBench of the National Green Tribunal[1] dated 8 February 2019 quashingthe Environmental Clearance[2] granted to the appellant for the developmentof an eight lane Peripheral Ring Road[3]connecting Tumkur Road to Hosur Road and totaling a length of 65 kilometers. The NGT was of the view 1 NGT2 EC3 PRR

A

B

C

D

E

F

G

H

Athat the primary data upon which the Environment Impact Assessment[4]report was based was collected more than three years prior to itssubmission to the State Environment Impact Assessment Authority[5]. TheNGT was of the view that it was not necessary to adjudicate upon theother contentions that were urged in support of quashing the EC asthere was a substantial delay in the preparation of the EIA report.BAccordingly, the NGT directed the appellant to conduct a fresh rapidEIA and clarified that the “project proponent will not proceed on thebasis of the impugned Environmental Clearance.” Assailing the order ofthe NGT, the appellant, as project proponent, is in appeal before thisCourt.C2. In a bid to address the growing need for efficientcommutation,address traffic congestion and connect the Bangalore-Mysore Infrastructure Corridor (NICE road) with more access points,the appellant formulated the PRR project scheme in 2005. A preliminarynotification was issued on 27 May 2005 under Section 17(1) and (3) of

Dthe Bangalore Development Authority Act 1976[6] to acquire certain landfor the execution of the project. The stated purpose of the project was:“1) To decongest the traffic in Bangalore City;

2) To cater intercity connectivity and intercity traffic;

3) To reduce pollution in the city;

E

4) To reduce heavy vehicles traffic i.e., Lorry and Trucks; and

5) To decongest the traffic on outer ring road.”

3. Another preliminary notification was issued on 23 September2005 which concerned the realignment of the proposed road project. AFfinal notification under Section 19(1) of the BDA Act was issued on 29June 2007 for the acquisition of the proposed land. The notificationswere challenged before the High Court of Karnataka in Writ proceedings[7]on the ground that the appellant had no authority to issue the notificationsand acquire land for the proposed PRR project. By a judgment dated 22July 2014, the High Court dismissed the writ petition on the ground thatGthe appellant was authorised under the BDA Act to acquire the land forthe project in question. The Writ Appeal against this was dismissed onthe ground of default on 9 February 2017.

4 EIA

5 SEIAA6 BDA ActH7 WP No. 4550/2008

4. The appellant, as project proponent, submitted an application[8]tothe SEIAA on 10 September 2009 under the EIA Notification 2006[9]seeking an EC for the PRR. The Terms of Reference[10] were preparedby the State Expert Appraisal Committee[11]on 21 November 2009.Primary data was collected between December 2009 and February 2010.The final EIA report was placed before the SEAC and the SEIAA inOctober 2014. An EC was granted by the SEIAA on 20 November2014. The first and second respondents filed an appeal to the NGTchallenging the grant of the EC. The NGT, by an interim order dated 15April 2015 granted an interim stay of the EC. The relevant portion of theorder reads:

“Pointing to the EIA report which was placed before the 1[st]respondent, the counsel for the appellant would submit that thefirst part of the report would clearly indicate that if the road wasconstructed, it would pass through the Reserve Forest and thelater part it would submit that the Forest clearance is not necessarywhich by itself would suffice to reject the recommendation. TheEIA report would clearly indicate that if the proposed road hasgot to be constructed approximately 200 trees were to be cutwhich is thoroughly inconsistent to the report given by theHorticulture and Forest Department. According to their report, itwould require felling of 16,685 trees. Added further by the counselfor the appellant that if the proposed road is allowed to beconstructed it would be above the underground pipe line alreadylaid for transporting petroleum from Mangalore to Bangalore andif any leakages happens in future it would bring forth seriousconsequence…

There exists a prima facie case in favour of the appellant forgranting an interim order of stay…”

The NGT noted the discrepancy between the submission of theappellant and the existence of a reserved forest through which theproposed road was to pass. The NGT recorded that while the EIA reportstated that only 200 trees would be cut for the proposed project, the 8 No. BDA/EM/TA3/PRR/EIA/T333/09-109 2006 notification10 ToR

11 SEAC

AB

C

D

E

F

G

H

Areport given by the Horticulture and Forest Department indicated thatabout 16,685 trees would be required to be felled for the proposed project.By its final order dated 8 February 2019, the NGT stayed the operationof the EC granted by the SEIAA. The relevant portion of the orderreads:

B“The Environmental Clearance was granted on 20.11.2014. Thus,the primary data was more than three years prior to the EIAreport. There are omissions in the EIA report with regard to dataof forests land as well as the provisions of revised Master Plan,2015 prepared by the BDA. Thippagondanahalli Reservoir (TGR)catchment area has been suppressed in the EIA report. GreenCcover particulars have been overlooked. Further objection is thatthere is proximity of the area to the petroleum pipelines and landearmarked for petroleum pipelines overlaps the project. Accordingto the appellant, Stage-I Forest Clearance was not obtained asrequired…

DIt is not necessary to adjudicate on the contentions raised, havingregard to the patent fact that there was substantial delay in EIAand a period of almost five years passed even thereafter. ThisTribunal, vide order dated 15.04.2015, considered the issue…Itwill, thus, be in the interest of justice that a fresh rapid EIA isEconducted. If the project is found viable after incorporating dueabatement measures, including the suggestions of the appellant,the same can be taken up without further delay…”

The NGT directed the appellant to conduct a rapid EIA. It wasfurther directed that if the project is found to be viable after incorporatingFabatement measures, “the same can betaken up without delay”. Noticewas issued by this Court on 15 March 2019.

B Submissions

5. Assailing the order of the NGT, Mr. Shyam Divan, learnedSenior Counsel appearing on behalf of the appellant contended that:

G

(i) The 2006 Notification obliges a project proponent to seekprior EC only for projects that are listed in the Schedule tothe Notification. Para 7(f) of the Schedule includes only thoseprojects that are either National or State Highways. The PRRproject does not fall within the ambit of either the NationalHHighways Act 1956 or the Karnataka Highways Act 1964.

A

Consequently, the appellant was under no obligation underthe 2006 Notification to seek a prior EC for the PRR project;

(ii) The 2006 Notification came into effect from the date of itspublication in the Official Gazette on 14 September 2006. Itis prospective in its application. The PRR project commencedon 23 September 2005 upon the issuance of the preliminaryBnotification under the BDA Act and as such, on the date ofthe coming into force of the 2006 notification, no obligationexisted on the appellant to seek a prior EC for the PRRproject;

(iii) The appellant executed the EIA process and applied for thegrant of an EC out of abundant caution; C

(iv) The first respondent has challenged the grant of the EC bythe SEIAA only because his appeal before the KarnatakaHigh Court challenging the acquisition of land for the PRRproject was unsuccessful. The present proceedings aremerely a method of delaying the acquisition proceedings; D

(v) The SEAC acceded to the request of the appellant to notforward to the SEIAA a recommendation for the closure ofthe proposal. The SEAC recommended to the SEIAA thegrant of the EC to the project in question after dueconsideration of the EIA report in its 121st meeting between11 and 18 November 2014; and E

(vi) All objections raised by the first respondent concerningforests, the cutting of trees and the protection of the reservoirwere adequately addressed in the EIA report submitted in2014, on which basis an EC was granted to the PRR project.

F

6. On the other hand, Mr. Nikhil Nayyar, learned Senior Counselappearing on behalf of the first respondent contended:

(i) The term ‘highway’ or ‘expressway’ used in the 2006Notification must be given a wide interpretation and not berestricted to the issuance of a notification under central orstate enactments; G

(ii) Both the National Highway Act 1956 and the KarnatakaState Highway Act 1964 concern the acquisition of land, itsdevelopment and permissions concerning the collection of H

764SUPREME COURT REPORTS

Atoll/fee. The statutory framework does not envisage the widedefinition to be attributed to the term ‘highway’ in mattersconcerning the protection of the environment;

(iii) The appellant itself admitted in its EIA report that the PRRproject is a category ‘B’ project falling under the purview ofBpara 7(f) of the Schedule under the 2006 Notification;

(iv) The primary data for the PRR project was collected betweenDecember 2009 and February 2010. The EAC conductedthe appraisal process after a substantial delay of over fouryears in the year 2014. This defeats the purpose for whichCToRs are issued as the state of the environment is constantlychanging;

(v) An OM dated 22 March 2010 issued by the Ministry ofEnvironment and Forests[12 ]stipulates that EIA reports forprojects where the ToRs have been granted prior to the dateDof the coming into force of the OM must be based on primarydata that is not older than three years. The OM furtherstipulates that a ToR is valid only for a period of four years.The EIA report was prepared after the expiry of the ToRand is legally unsustainable; E(vi) The SEIAA decided to close the file for the PRR project on17 May 2013, which decision was communicated to theappellant on 25 July 2013. A party aggrieved by the action ofthe SEIAA may only file an appeal under Section 16 of theNGT Act and the SEIAA was not authorised to reopen thefile on the request of the appellant;F

(vii) There was no collection of additional data in the year 2014.The report which is styled as a rapid EIA report in the year2014 is nothing but the final EIA report under the 2006Notification which was prepared after the public consultationprocess was conducted in February 2014;andG

(viii) There are significant omissions in the EIA report concerningforest land, green cover, number of trees required to be cut,the catchment area in the Thippagondanahalli Reservoir and proximity of the PRR project to the petroleum pipelinesunderneath. Material concealment by the project proponentinvalidates the EC which was granted by the SEIAA.

7. The rival submissions fall for our consideration.

C Issues

8. Essentially this Court is required to decide:

(i) Whether the PRR project commenced prior to the coming intoforce of the 2006 Notification;

(ii) Whether the PRR project falls within the scope of para 7(f) ofthe Schedule to the 2006 Notification obliging the project proponent toseek aprior EC; and

(iii) Whether the appellant has complied with the conditionsstipulated in the 2006 Notification and the OMs issued by the MoEF-CCfrom time to time.

D Date of commencement of the PRR project

9. This Court is required to adjudicate whether it is the issuanceof a preliminary notification under Section 17 of the BDA Act or a finalnotification under Section 19 of the BDA Act that constituted theidentification of the proposed site for the project and marked itscommencement for the purposes of the 2006 Notification.

10. On 27 January 1994, the MoEF, in exercise of the powersconferred by sub-section (1) and clause (v) of sub-section (2) of Section3 of the Environment (Protection) Act 1986 Act read with clause (d) ofsub-rule 3 of rule 5 of the Environment (Protection) Rules, 1986, issueda notification imposing restrictions and prohibitions on the expansion andmodernisation of any activity or a new project unless a prior EC wasgranted in accordance with the procedure stipulated in the notification.On 14 September 2006, the MoEF released the 2006 Notification insupersession of the previous notification. The 2006 Notification directedthat:

A

B

C

DE

F

G

H

A“…on and from the date of its publication the requiredconstruction of new projects or activities or the expansion ormodernization of existing projects or activities listed in theSchedule to this notification entailing capacity addition withchange in process and or technology shall be undertaken inany part of India only after the prior environmental clearanceBfrom the Central Government or as the case may be, by the StateLevel Environment Impact Assessment Authority, duly constitutedby the Central Government under sub-section (3) of section 3 ofthe said Act, in accordance with the procedure specified hereinafterin this notification.”

C

11. The 2006 Notification came into force on the date of itspublication and obliges every project proponent to seek prior EC for theprojects and activities which are listed in the Schedule to the Notification.According to para 2 of the 2006 Notification, all new projects or activitiesDlisted in the Schedule to the 2006 Notification shall require a prior ECfrom the concerned regulatory authority:

“2. Application for Prior Environmental Clearance (EC):- Anapplication seeking prior environmental clearance in all cases shallbe made in the prescribed Form 1 annexed herewith andESupplementary Form 1A, if applicable, as given in Appendix II,after the identification of prospective site(s) for the projectand/or activities to which the application relates, beforecommencing any construction activity, or preparation ofland, at the site by the applicant. The applicant shall furnish,along with the application, a copy of the pre-feasibility projectFreport except that, in case of construction projects or activities(item 8 of the Schedule) in addition to Form 1 and theSupplementary Form 1A, a copy of the conceptual plan shall beprovided, instead of the pre-feasibility report.”

G

Once a prospective site has been identified by the applicant forthe proposed project, all applications seeking an EC shall be made in theprescribed Form 1 and Supplementary Form 1A, if applicable whichcontains a detailed list of the extent and potential impact of the proposedproject. The application must be submitted after the identification of theHprospective site and prior to the commencement of any construction activity, or preparation of the land.Thus, the action by the projectproponent that is relevant to the obligation to seek a prior EC under the2006 notification is the identification of the prospective site for theexecution of the proposed project.

12. Section 2(a) of the BDA Act defines “authority” as theBangalore Development Authority constituted under Section 3 of theAct. Chapter III of the Act deals with development schemes and theprocedures that must be complied with in the carrying out of adevelopment scheme. Under Section 15, the appellant may draw up adetailed development scheme for the development of the Bangaloremetropolitan area. Section 16(1) mandates that the appellant must alsoprovide, in the formulation of the scheme, the details of the land proposedto be acquired for the development scheme. Section 17 contemplatesthe issuance of a preliminary notification. It reads:

“17. Procedure on completion of scheme.- (1) When adevelopment scheme has been prepared, the Authority shall drawup a notification stating the fact of a scheme having been madeand the limits of the area comprised therein, and naming a placewhere particulars of the scheme, a map of the area comprisedtherein, a statement specifying the land which is proposed to beacquired and of the land in regard to which a betterment tax maybe levied may be seen at all reasonable hours.

(2) A copy of the said notification shall be sent to the Corporationwhich shall, within thirty days from the date of receipt thereof,forward to the Authority for transmission to the Government ashereinafter provided, any representation which the Corporationmay think fit to make with regard to the scheme.

(3) The Authority shall also cause a copy of the said notificationto be published in [ x xx ] the official Gazette and affixed in someconspicuous part of its own office, the Deputy Commissioner’sOffice, the office of the Corporation and in such other places asthe Authority may consider necessary.

(4) If no representation is received from the Corporation withinthe time specified in sub-section (2), the concurrence of theCorporation to the scheme shall be deemed to have been given.

(5) During the thirty days next following the day on which suchnotification is published in the official Gazette the Authority shall A

B

C

DE

F

G

H

Aserve a notice on every person whose name appears in theassessment list of the local authority or in the land revenue registeras being primarily liable to pay the property tax or land revenueassessment on any building or land which is proposed to be acquiredin executing the scheme or in regard to which the Authorityproposes to recover betterment tax requiring such person to showBcause within thirty days from the date of the receipt of the noticewhy such acquisition of the building or land and the recovery ofbetterment tax should not be made.

(6) The notice shall be signed by or by the order of the[Commissioner] and shall be served,-C(a) by personal delivery or if such person is absent or cannot befound, on his agent, or if no agent can be found, then by leavingthe same on the land or the building ; or (b) by leaving the same atthe usual or last known place of abode or business of such person;or (c) by registered post addressed to the usual or last knownDplace of abode or business of such person.

Section 17 stipulates that the appellant shall, upon the preparationof a scheme under Section 15, notify that a scheme has been preparedalong with the specifications of the scheme, a map of the area comprisedtherein and the details of the land proposed to be acquired.The notificationis forwarded to the Corporation of the City of Bangalore, which is grantedEthirty days to provide its comments to the appellant authority fortransmission to the government along with the scheme for sanction.Section 17(3) stipulates that a copy of the notification shall be publishedinthe Official Gazette and affixed in conspicuous parts of the offices ofthe appellant and the Corporation. Section 17(5) mandates that theFappellant shall serve on every person whose land is proposed to beacquired a notice to show-cause within thirty days onwhy the acquisitionof the building or land must not take place.

13. Section 18 stipulates that where the procedure stipulated underSection 17 is complete, the appellant shall submit the scheme with anyGmodifications, to the Government of Karnataka for sanction subject tothe conditions stipulated therein. Section 18 reads:

“18. Sanction of scheme.- (1) After publication of the schemeand service of notices as provided in section 17 and afterconsideration of representations, if any, received in respect thereof,the Authority shall submit the scheme, making such modificationsHtherein as it may think fit, to the Government for sanction,furnishing,- (a) a description with full particulars of the scheme includingthe reasons for any modifications inserted therein; (b) complete plans and estimates of the cost of executing thescheme;

(c) a statement specifying the land proposed to be acquired;(d) any representation received under sub-section (2) of section17; (e) a schedule showing the rateable value, as entered in themunicipal assessment book on the date of the publication of anotification relating to the land under the section 17 or the landassessment of all land specified in the statement underclause(c); and (f) such other particulars, if any, as may be prescribed.

(2) Where any development scheme provides for the constructionof houses, the Authority shall also submit to the Government plansand estimates for the construction of the houses.

(3) After considering the proposal submitted to it the Governmentmay, by order, give sanction to the scheme.”

Under this provision, the appellant is required to furnish details ofthe land proposed to be acquired along with a schedule showing therateable value, as entered in the municipal assessment book on the dateof the publication of the notification. The appellant furnishes to thegovernment a description with full particulars of the scheme includingthe reasons for any modifications inserted, plans and estimates of costsand a statement specifying the land proposed to be acquired.Significantly,if the government is satisfied with the proposed scheme, it may accordsanction to the scheme under Section 18(3) of the Act. A schemeformulated under Section 15 may only be carried out where sanctionhas been accorded to the scheme by the Government under Section18(3) of the Act.

14. Section 19 of the Act reads thus:

“19. Upon sanction, declaration to be published givingparticulars of land to be acquired.- (1) Upon sanction of thescheme, the Government shall publish in the official Gazette adeclaration stating the fact of such sanction and that the landproposed to be acquired by the Authority for the purposes ofthe scheme is required for a public purpose.

A

B

C

D

E

F

G

H

A

(2) The declaration shall state the limits within which the landproposed to be acquired is situated, the purpose for which it isneeded, its approximate area and the place where a plan ofthe land may be inspected.

(3) The said declaration shall be conclusive evidence that theland is needed for a public purpose and the Authority shall,upon the publication of the said declaration, proceed to executethe scheme.

B

(4) If at any time it appears to the Authority that an improvementcan be made in any part of the scheme, the Authority mayalter the scheme for the said purpose and shall subject to theprovisions of sub-sections (5) and (6), forthwith proceed toexecute the scheme as altered.

C

(5) If the estimated cost of executing the scheme as alteredexceeds, by a greater sum than five per cent the estimatedcost of executing the scheme as sanctioned, the Authority shallnot, without the previous sanction of the Government, proceedto execute the scheme as altered.

D

(6) If the scheme as altered involves the acquisition otherwisethan by agreement, of any land other than that specified in theschedule referred to in clause (e) of sub-section (1) of section18, the provisions of sections 17 and 18 and of sub-section (1)of this section shall apply to the part of the scheme so alteredin the same manner as if such altered part were the scheme.”

E

Under Section 19, once the Government sanctions the appellant’sscheme, a final notification is published by the government in the OfficialFGazette declaring that sanction has been received and that the landproposed to be acquired is required for a public purpose. The finalnotification specifies the limits within which the land proposed to beacquired is situated and specifies the place at which people may inspectthe plan. The appellant is authorised under Section 19(4) to alter theGscheme subject to the sub-sections (5) and (6). Section 19(6) stipulatesthat if acquisition of additional land is required over and above the detailsthat were furnished by the appellant under Section 18, and otherwisethan by agreement with the person whose land is proposed to be acquired,the procedure stipulated in Section 17 and 18 shall be followed.

15. The BDA Act was enacted with the purpose of establishing adevelopment authority for the development of the city of Bangalore and H

adjacent areas. Sections 17, 18 and 19 stipulate the mechanism thatmust be followed by the appellant leading up to the grant of governmentsanction for a scheme formulated under Section 15. The purposeunderlying Section 17 is to grant to both the Corporation and the personswhose lands are proposed to be acquired an opportunity to file theirobjections to the proposed scheme and the acquisition of land requiredfor the execution of the project. Though the land proposed to be acquiredfor the scheme is stipulated in the preliminary notification under Section17, the provision to forward to the Corporation a copy as well as servenotices to persons whose lands are proposed to be acquired sub-servesthe principles of natural justice where an affected party is extended theright to object to a proposed scheme.

16. Upon the receipt of suggestions and objections, if any, theappellant may modify the scheme in accordance with the suggestionsreceived and thereafter forward to the Government the scheme for thegrant of sanction. However, it is only upon the grant of sanction by theGovernment under Section 18(3), that a final notification under Section19 is issued. It is only upon the grant of sanction by the Government thata proposed scheme is deemed to be finalized and carried into effect.

17. The 2006 Notification stipulates an obligation to commencethe EIA process once a prospective site is identified and before thecommencement of any construction or preparation of land. It may bepossible that following the formulation of a scheme under Section 15and the issuance of a preliminary notification under Section 17,government sanction is denied or the appellant drops the proposedscheme prior to the grant of sanction or the issuance of the finalnotification. In such situations, if it were held that it is the issuance of thepreliminary notification identifying the proposed site for the project thatmarked the commencement of the project for the purposes of the 2006Notification, the appellant would be under an obligation to carry out theEIA process for a proposed scheme which may not eventually materialize.

18. The EIA process under the 2006 Notification serves as abalance between development and protection of the environment: thereis no trade-off between the two. In laying down a detailed procedure forthe grant of an EC, the 2006 notification attempts to bridge the perceivedgap between the protection of the environment and development. Thebasic postulate of the 2006 Notification is that the path which is prescribedfor disclosures, studies, gathering data, consultation and appraisal isdesigned in a manner that would secure decision making which is AB

C

D

E

F

G

H

Atransparent, responsive and inclusive. While the BDA Act was enactedwith the purpose of establishing a development authority for thedevelopment of the city of Bangalore and adjacent areas, the 2006Notification embodies the notion that the development agenda of thenation must be carried out in compliance with norms stipulated for theprotection of the environment and its complexities. The BDA Act andBthe 2006 Notification operate in different fields. It cannot be said that asite is deemed identified for the purpose of triggering the obligationsunder the 2006 Notification upon the issuance of a preliminary notificationunder Section 17 of the BDA Act. Adopting a contrary interpretationwould lead to the absurd result where a project proponent is obligated toCcarry out the EIA process for a scheme even prior to the grant ofgovernment sanction and a final notification carrying into effect theproposed scheme. In this view of the matter, the prospective site is deemedto be identified only upon the issuance of the final notification underSection 19 after the proposed scheme has received Government sanctionunder Section 18(3).D

19. The final notification under Section 19(1) of the BDA Actwas issued on 29 June 2007 following the grant of government sanctionfor the acquisition of the land. This being after the coming into force ofthe 2006 Notification, the contention urged by the appellant that the projectEcommenced prior to the coming into force of the 2006 Notification cannotbe accepted.

E Applicability of the EIA Notification 2006

20. Essentially, this Court is required to address the contentionFurged by Mr. Shyam Divan, learned Senior Counsel appearing on behalfof the appellant that the PRR project, being neither a project fallingwithin Section 2 of the National Highways Act 1956 or Section 3 of theKarnataka Highways Act 1964, does not fall within the ambit of theSchedule to the 2006 Notification.

G21. Para 2 of the 2006 Notification reads thus:

“2. Requirements of prior Environmental Clearance (EC):- Thefollowing projects or activities shall require prior environmentalclearance from the concerned regulatory authority, which shall H

BENGALURU DEVELOPMENT AUTHORITY v. MR. SUDHAKARHEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

hereinafter be referred to as the Central Government in the Ministryof Environment and Forests for matters falling under Category‘A’ in the Schedule and at State level the State Environment ImpactAssessment Authority (SEIAA) for matters falling under Category‘B’ in the said Schedule, before any construction work, orpreparation of land by the project management except for securingthe land, is started on the project or activity:

A

B

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

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

(iii) Any change in product - mix in an existing manufacturing unitincluded in Schedule beyond the specified range.”

D

Para 2(1) of the 2006 Notification stipulates that only projectslisted in the Schedule must be granted prior EC. Para 7(f) of the Scheduleto the 2006 Notification, as originally enacted reads:

E

F

G

22. The schedule to the 2006 Notification stipulates that projectslisted in column 3 must be granted prior EC from the MoEF-CC while H

Aprojects listed in column 4 must be granted prior EC from the SEIAA.The general conditions applicable are listed at the end of the Schedule.[13]Column 3 of para 7(f) includes new national highways and the expansionof existing national highways while column 4 includes new state highwaysand the expansion of existing state highways.Admittedly, in the presentcase, no notification was issued under either the National Highways ActB1956 or the Karnataka Highways Act 1964 notifying the PRR project asa highway under those enactments. Initial discussions took place at theGovernment of Karnataka level regarding the transfer of the PRR projectto the National Highways Authority of India[14]. On 10 January 2018, theCentral Road Transport Ministry was informed that the Government ofCKarnataka had granted its consent to transfer the said project to theNHAI on an”as it is” basis. However, the Government of Karnataka,by its order dated 24 June 2008, withdrew the proposal to transfer thePRR project to the NHAI.

23. There is however another aspect of the matter that warrantsDthe attention of this Court. Para 7(f) of the Schedule to the 2006Notification has been amended[15] since the coming into force of the 2006Notification.

24. Prior to the issuance of the 2006 Notification, a draft notificationwas published in the official Gazette on 15 September 2005 stipulatingEthat comments may be sent to the MoEF-CC within sixty days from thedate on which the notification was published. Para 7(f) of the Scheduleto the draft notification reads:

F

13 “Any project or activity specified in Category ‘B’ will be treated as Category A, ifGlocated in whole or in part within 10 km from the boundary of: (i) Protected Areasnotified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas asnotified by the Central Pollution Control Board from time to time, (iii) Notified Eco-sensitive areas, (iv) inter-State boundaries and international boundaries.”14 NHAI

15 Notifications dated 11 November 2007, 1 December 2009, 4 April 2011 and 22HAugust 2013.

BENGALURU DEVELOPMENT AUTHORITY v. MR. SUDHAKARHEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

S. Project or NIC code ISIC CategoryConditANo. Activity (2004) code ions if AA/BBany (f)Roads 45203*All new -All State GC-1National Highway Highways Highways, projects >= Express 30 km length ways and Bbypasses >= 30 Km length Or Or All State CHighway All National expansion Highways, projects Express way expansion projects >= 30 km length and Dadditional >= 30 km rights of way length and of more than additional 20 m right of way of more than 20m E

In the draft notification, para 7(f) to the Schedule included theterm ‘expressway’ under category ‘A’ projects. However, in the final2006 Notification, the word ‘expressway’ was deleted. Absent anyconclusive reason for the deletion from the draft notification prior to itcoming into force, such deletion cannot be used to construe the terms ofthe 2006 Notification or subsequent amendments thereto.

F

25. In exercise of the powers conferred by sub-section (1) andclause (v) of sub-section (2) of Section 3 of the Environment (Protection)Act 1986 read with clause (d) of sub-rule (3) of rule 5 of the Environment(Protection) Act 1986, the Central Government issued a notification dated1 December 2009 amending, inter alia, para 7(f) of the Schedule to the2006 Notification. Para (xv) of the amending notification reads:

G

“(xv) against item 7(f),

(a) In column (4), for the entry, the following entry shall besubstituted namely:- H

A“i) All State Highway Projects; and

ii) State Highway expansion projects in hilly terrain (above 1,000m AMSL) and or ecologically sensitive areas”

(b) in column (5) for existing entry, the following entry shallbe substituted, namely:- B

“General Conditions shall apply.

Note: Highways include expressways.”

Following the 2009 amendment, column 5 of para 7(f) to theSchedule which read “General Condition shall apply” was substituted toCstipulate that in addition to the application of the general conditions,highways include expressways.

26. Prior to the amendment, a draft notification was published on19 January 2009 seeking comments and objections thereto. The MoEF-CC, by its order dated 3 July 2009 constituted a Committee under theDChairmanship of Shri JM Mauskar, Additional Secretary to consider thecomments received on the draft notification, conduct meetings with thevarious stake holders and make recommendations for the finalization ofthe notification.The Committee held various meetings with concernedstakeholders. The MoEF-CC published the report of the Committee titled“Report of the Committee constituted under the ChairmanshipEof Shri JM Mauskar, Additional Secretary to examine thecomments / suggestions on the Draft Amendments to EIANotification, 2006” in October, 2009. Numerous comments werereceived by the Committee on various aspects of the draft notificationincluding the proposed amendment to para 7(f) of the Schedule. Theinitial draft notification only sought to modify column 4 of para 7(f).FHowever, comments were received by the Committee stating thataspecific reference to expressways must be made. The Committeeformulated its analysis in the following terms:

“Analysis: The main suggestion relates to expansion of the scopeof the notification by including expressways, bypasses, MajorGdistrict roads, tunnelling for roads within city limits, peripheral roadsaround municipal corporation limits. There is also a request forexpanding the right of way limit from 20 metres to 60 metres.BRO has sought exemption of their projects up to 50 kilometres.From the comments received, it is perceived thatHExpressways are different from Highways. However, BENGALURU DEVELOPMENT AUTHORITY v. MR. SUDHAKARHEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

keeping in view the objective of the Notification, it needsto be explicitly clarifiedin the Notification that Highwaysinclude Expressways. In regard to other items these may beconsidered separately. In regard to the proposal for enhancingthe right of way limit from 20 metres to 60 metres, this may not beaccepted as it would involve significant changes in land use andissues of rehabilitation.”

27. The analysis of the Committee recorded that the mainsuggestions related to the expansion of the scope of the Notification byincluding within its ambit expressways, bypasses, major district roads,tunnelling for roads within city limits and peripheral roads aroundmunicipal corporation limits. Significantly, the Committee took note ofthe perception that highways and expressways differed from each other.Though it appeared from the comments that an expansion was sought inthe scope of the 2006 Notification, the Committee explicitly clarifiedthat the term ‘highways’ includes ‘expressways’.For other items, theCommittee stated that they may be considered separately. Theclarification issued for highways and expresswaysdid not amount to anexpansion in the scope of the 2006 Notification but only made clear thatthe term highways always included expressways.

28. Where an amendment is clarificatory in nature, suchamendment is deemed to be retrospective in its application. In StateBank of India v VRamakrishnan[16], the question before a two judgeBench of this Court concerned whether Section 14 of the Insolvencyand Bankruptcy Code, 2016 which provides for a moratorium for thelimited period mentioned, on admission of an insolvency petition, wouldapply to a personal guarantor of a corporate debtor. In the judgment ofNational Company Law Appellate Tribunal which was under appeal, itwas held that as a Resolution Plan binds personal guarantors as wellunder Section 31, the moratorium under Section 14 would apply to personalguarantors. Assailing this, the appellant relied upon the InsolvencyCommittee Law proceedings to contend that an amendment to Section14 which stipulated that the moratorium shall not apply to a surety in acontract of guarantee to a corporate debtor was clarificatory in natureand that personal guarantors were always intended to fall outside the C

D

E

F

G

H

Aoperation of the moratorium. Accepting this contention, Justice RFNariman, speaking for the Court held:

“31. The Insolvency Law Committee, appointed by the Ministryof Corporate Affairs, by its Report dated 26-3-2018, made certainkey recommendations, one of which was:

B

“(iv) to clear the confusion regarding treatment of assets ofguarantors of the corporate debtor vis-à-vis the moratoriumon the assets of the corporate debtor, it has been recommendedto clarify by way of an explanation that all assets of suchguarantors to the corporate debtor shall be outside scopeCof moratorium imposed under the Code;” (Emphasissupplied)

…

The Committee concluded that Section 14 does not intend tobar actions against assets of guarantors to the debts of theDcorporate debtor and recommended that an explanation toclarify this may be inserted in Section 14 of the Code. Thescope of the moratorium may be restricted to the assets of thecorporate debtor only.”

33. The Report of the said Committee makes it clear that theEobject of the amendment was to clarify and set at rest what theCommittee thought was an overbroad interpretation of Section14.”

The Court noted that the Committee clarified that it was neverintended that the moratorium under Section 14 applied to personalFguarantors of corporate debtors. Accordingly, an amendment was enactedto Section 14. The Court then proceeded to hold, relying on consistentprecedent of this Court, that a clarificatory amendment has retrospectiveapplication. A similar position is expounded by G P Singh in his seminalwork Principles of Statutory Interpretation. He states:

G“…An amending Act may be purely clarificatory to clear a meaningof a provision of the principal Act which was already implicit. Aclarificatory amendment of this nature will have retrospective effectand, therefore, in the principal Act was existing law when theamendment came into force, the amending Act also will be partof the existing law.”

H

29. An amending provision which clarifies the position of law whichwas considered to be implicit, is construed to have retrospective effect.The position of the retrospective application of clarificatory amendmentsto notifications is analogous to the position under statutory enactments.Inthe present case, the Committee appointed by the MoEF-CC clarifiedthat the term highways included expressways and suggested that asuitable amendment be issued to that effect. Based on the report of theCommittee, a clarificatory amendment was issued in column 5 of para7(f) to stipulate that highways include expressways.This being theposition, this Court is required to analyze whether the PRR projectqualifies as an expressway falling within the ambit of para 7(f) of theSchedule.

30. Neither the National Highways Act 1956 nor the KarnatakaHighways Act 1964 define the term ‘highway’. The 2009 amendment tothe 2006 Notification is silent on the definition of the term ‘expressway’.Itwas submitted by the learned Senior Counsel appearing on behalf of therespondents that the definition by the Indian Road Congress[17] in theManual of Specifications and Standards for Expressways in instructiveis instructive.

31. The IRC was set up in 1934 on the recommendation of theIndian Road Development Committeeconstituted by the Government ofIndia for the development of roads in the country. An expert group wasconstituted in 2013 to formulate a Manual of Specifications and Standardsfor Expressways. The report, which was released in the same year,defined an expressway in the following terms:

“…For this purpose, the Expressway is defined as an arterialhighway for motorized traffic, with divided carriageways for highspeed travel, with full control of access and provided with gradeseparators at location of intersections. Generally, only fast-movingvehicles are allowed access on Expressways…”

An expressway is defined as an arterial highway designed forhigh-speed travel with the objective of reducing traffic and generallyinvolving control of access. Other indicators are the provision of tollbooths, divided carriageways and grade separators located atintersections. The assessment of whether a road project is an expresswayis to be determined on a case by case basis.

17 IRC

AB

C

D

E

F

G

H

A32. In the present case, the stated purpose of the PRR project is thus:

“1) To decongest the traffic in Bangalore City;

2) To cater intercity connectivity and intercity traffic;

3) To reduce pollution in the city

B

4) To reduce heavy vehicles traffic i.e., Lorry and Trucks

5) To decongest the traffic on outer ring road.”

The brief note submitted by the appellant to this Court states that:

C

C“…the PRR proposed to be implemented by the BDA is an 8 lanedivided road around Bangalore city is primarily ease thevehicular traffic congestion on its city roads. The proposedcross-section consists of 4 lane main road in each traffic directionand 3 lane service road on either side of the main road for localtraffic. The main road and the service road will be separated byDaccess-controlled facility. The engineering designs will becarried out in accordance with Indian roads congressstandards.”

The primary purpose of the PRR project is to ease vehicular trafficcongestion in the city. The main road and the service road are to beseparated by access-controlled facilities. The engineering designs are tobe carried out in accordance with the standards laid down by the IRC.The EIA report prepared by the appellant describes the PRR project inthe following terms:

E

F

“The proposed Peripheral Ring Road (PRR) project alignmentstarts from – Tumkur Road as CH.17a (distance of 16-20 Kmfrom Bangalore city railway station) on NH4 & terminate at HosurRoad near Begur CH.64.65 Km (65Km) for a smooth flow oftraffic, to reduce the traffic congestion, pollution intensityGand travel time.”

…

Highway Design

The proposed Peripheral Ring Road (PRR) alignment has beendesigned for a speed of 100 Kmph where ever possible.

H

However, at a few locations that designs have been carried outfor 80 Kmph owing to restrictions at site. The vertical curves aredesigned as per the guidelines of IRC SP:23.

…

Interchanges

An interchange is a grade separated intersection withconnecting roadways for turning traffic between highway andapproaches. The intersections are designed during the constructionof Peripheral Ring Road (PRR) after contemplating the guidelinesand schemes given in AASHTO and IRC: 92 guidelines.

…

Toll Plaza

…All the traffic passing through the toll plaza section of road willhave to pay toll. The public bus transport will be exempted frompaying the toll.

Accessibility

The Peripheral Ring Road (PRR) is speculated as a toll road.Provisions are provided for toll booths for tolling the road system.Accessibility to Peripheral Ring Road (PRR) is restrictedto the following categories of roads National Highways; State Highways; Major District roads.

“The proposed project being a new state highway having 65 Kmlength with Right of Way of 75m the project falls under category“b” in the Schedule of the EIA notification 2006 and requiresenvironmental clearance from SEIAA”

33. The PRR project is expected to be an 8 lane main carriagewayhighway (4 + 4 bi-directional), along with a 6 lane road service road (3 +

A

B

C

D

E

F

G

H

A3 bi-directional) having a right of way of 75 meters and total length of63.5 kms. The EIA report stipulates that the PRR project wasconceptualised with the salient purpose of decongesting the traffic in thecity and catering to intercity connectivity and intercity traffic. This, itwas stated, would significantly reduce pollution intensity and travel time.The EIA report clarifies that the project is designed to cater to highBspeed vehicular traffic with vehicles plying at speeds of 100Kms/hr,where possible, and 80Kms/hr in other places.

34. Moreover, the report stipulates that the project also comprisesof ten interchanges and sixteen toll booths.It is stated that access to theroad is restricted only to national highways, state highways and majorCdistrict roads. In this view of the matter, there is no doubt that the PRRproject is an expressway falling within the ambit of para 7(f) of theSchedule to the 2006 Notification. The PRR project commenced on theissuance of the final notification under Section 19(1) of the BDA Act on29 June 2007. Having concluded that the PRR project is an expressway,Dthe appellant as project proponent was under an obligation under para7(f) of the Schedule to the 2006 Notification to seek a prior EC toimplement the project.

F Compliance with the procedure under the EIANotification 2006

E

F Compliance with the procedure under the EIANotification 2006

E

35. The next question to be analysed is whether the EIA processfollowed by the appellant was in compliance with the procedure stipulatedunder the 2006 Notification. In the written submissions and the rejoinderfiled by the appellant before this Court, it was contended that the EIAprocess leading upto the preparation and submission of the EIA report toFthe SEAC was in compliance with the procedure stipulated under the2006 Notification. It was contended that the NGT erred in concludingthat there was a substantial delay in the preparation of the EIA reportand in suspending the operation of the EC granted to the PRR project.On the other hand, in the written submissions filed by the respondents, itwas contended that the delay in the preparation of the EIA report was inGcontravention of the OM dated 22 March 2010 issued by the MoEF-CCprescribing a validity period of four years for ToRs from the date onwhich they are issued. In assessing the rival contentions, it becomesnecessary to analyse the EIA process followed by the appellant,leadingup to the grant of the EC.

H

36. On 10 September 2009, the appellant filed an application withthe SEAC seeking a prior EC for the PRR project as a category ‘B’project under the 2006 Notification. In accordance with the 2006Notification, the SEAC at its 46th meeting held on 21 November 2009formulated and issued the ToR for the PRR project on which basis theappellant was required to carry out the EIA process. The final EIAreport was placed before the SEAC and the SEIAA in November 2014.The SEAC held meetings on 5 April 2013, 9 June 2014, 11-12 August2014 and 11-18 November 2014. At its final meeting between 11-18November, the SEAC recommended the grant of an EC for the PRRproject to the SEIAA. The EC was granted on 20 November 2014.

37. The SEAC, at its 101st meeting dated 5 April 2013 decided torecommend to the SEIAA the closure of the project file since the ToRswere issued over two years prior to the meeting and there was nocorrespondence by the appellant indicating any progress on the EIAprocess. Acting upon the letter of the SEAC, the SEIAA, at its 66thmeeting dated 17 May 2013 closed the file relating to the grant of EC forthe PRR project and communicated its decision to the appellant on 25July 2013. By a letter dated 24 August 2013, the appellant requested theSEIAA to re-open the file. The SEIAA, at its 71st meeting dated3 September 2013 decided to re-open the file, subject to the payment ofthe requisite processing fee. A public hearing was conducted on 6 February2014. The SEAC, at its 111th meeting dated 9 June 2014, decided todefer the consideration of the appellant’s proposal as the EIA reportwas not made available to the Committee members. By a letter dated 2August 2014, the appellant placed before the SEAC the EIA report whichwas prepared after the public hearing was conducted in February2014.The SEAC, at its 115th meeting dated 11-12 August, 2014 notednumerous deficiencies in the information submitted by the appellant anddecided to obtain additional information which was communicated to theappellant on 28 August 2014.

38. The appellant provided to the SEAC a point-wise reply to theinformation sought along with additional samples on ground water, surfacewater and soil. A final EIA report was prepared by the appellant inOctober 2014 and submitted to the SEAC. At its 121st meeting between11th and 18th November 2014, the SEAC recommended to the SEIAAthe grant of EC to the PRR project. The SEIAA issued the EC on 20November 2014.

AB

C

D

E

F

G

H

A39. Under the 2006 Notification,the process to obtain an EC fornew projects comprises a maximum of four stages, all of which may notapply depending on the specific case stipulated under the Notification:screening, scoping, public consultation and appraisal. At the scoping stage,the project proponent submits information in Form 1 to the EAC or theSEAC, as the case may be, for the preparation of a comprehensiveBToR. Following this, the project proponent prepares a summary EIA forthe purpose of the public consultation process. The summary EIA ispresented at the public hearing to invite comments and objections, if any.Based on the comments received and after addressing the objectionsraised, a final EIA report is prepared and sent to the concerned regulatoryCauthority. At this stage, the regulatory authority must examine thedocuments “strictly with reference to the ToR” and communicate anyinadequacy to the EAC or the SEAC, as the case may be, within 30days of the receipt of the documents. Within sixty days of the receipt ofall the documents, the EAC or the SEAC, as the case may be, shallcomplete the appraisal process as prescribed in Appendix V. The appraisalDstage involves detailed scrutiny by the EAC or the SEAC of all thedocuments submitted by the applicant for the grant of EC.The EAC andthe SEAC are charged with evaluating the information submitted by theapplicant in Form 1/Form 1A with reference to the ToR which wasissued for the preparation of the EIA report.E40. Significantly, the process of obtaining an EC commences fromthe production of the information stipulated in Form 1/Form 1A.Information submitted in Form 1 relies on data and information on an “asis” basis at the relevant time of submitting information. Materialinformation regarding the particulars of the proposed project as well asFthe potential impact on the environment is sought to enable the EAC orthe SEAC to prepare a comprehensive ToR on which basis the applicantproceeds to prepare the EIA report. As the information in Form 1 issubmitted on the basis of prevailing environmental conditions as on thedate of its preparation, it is necessary to ensure that the EIA process iscontemporary to the submission of information in Form 1 and the issuanceGof the ToR. The MoEF-CC, noting situations where some EIA reportswere prepared belatedly on the basis of outdated ToRs, issued a notificationon 22 March 2010 prescribing a time limit for the validity of ToRs whichstated thus:

“Office Memorandum

Sub: Time limit for validity of Terms of Reference (TORs)prescribed under EIA Notification, 2006 for undertakingdetailed EIA studies for developmental projects requiringenvironmental clearance – Regarding.

The EIA Notification, 2006 has prescribed a time limit for validityenvironmental clearance granted to a project. However, no timelimit has been specifically provided under the EIA Notification forthe TORs prescribed for undertaking detailed EIA studies. As aresult, the TORs once prescribed would continue to be validindefinitely, which is definitely not desirable because theTORs are very much site specific and are dynamic to someextent depending upon the site features, its land use andthe nature of development around it. The matter has beenconsidered in the Ministry of Environment & Forests.

It has been decided that from 1.4.2010, the prescribed TORs wouldbe valid for a period of two years for submission of the EIA/EMPReports, after public consultation where so required. This periodwill be extendable to the 3[rd] year, based on proper justificationand approval of the EAC/SEAC, as the case may be. Thus, anouter limit of three years has been prescribed for the validity ofthe TORs with effect from 1.4.2010.

In case of the proposals which has been granted TORs priorto the issue of this O.M., the EIA/EMP reports should besubmitted, after public consultation where so required, nolater that four years from the date of the grant of the TORs,with primary data not older that three years.”

41. The MoEF-CC stated that it was clearly undesirable toindefinitely continue a ToR. The environment is, by its very nature,dynamic. Soil quality, air characteristics and surrounding flora and faunaare among the characteristics of the environment which are constantlyin a state of flux. A robust framework of environmental governanceaccounts for the dynamic nature of the environment. It is for this reasonthat project proponents are also required to ensure the submission of an A

B

C

D

E

F

G

H

AEnvironmental Management Plan and compliance with the monitoringprocedures envisaged under the 2006 Notification. An indefinite ToRdefeats the very purpose which underlies the 2006 Notification for itmay lead to situations where the state of the environment has changeddrastically, yet the EIA process is carried out on the basis of outdatedinformation. For this reason, the MoEF-CC prescribed a validity periodBof two years for TORs, which could be extended by the EAC or theSEAC only by another year. Furthermore, extension is to be grantedonly where the project proponent provides adequate justification inwriting. Relevant to the present case, the notification dated 22 March2010 stipulates that where ToRs were granted prior to the issue of the COM, the EIA report must be submitted within four years from the dateon which the ToR was issued, with primary data not being older thanthree years.

42. By another notification dated 22 August 2014, the MoEF-CCclarified the validity of the ToRs prescribed under the 2006 NotificationDin the following terms:“…2(iv) Extension of validity of TORs beyond the outer limit ofthree years for all projects or activities and four years for RiverValley and HEP projects shall not be consideredby theRegulatory Authority. In such cases, the project proponentwill have to start the process de novo and obtain fresh TORsEin case the proponent is still interested in pursuing theclearance for the project. Re-use of old baseline data(provided it is not more than 3 years old) for the purpose ofpreparation of fresh EIA and EMP report will be consideredsubject to due diligence by the EAC/SEAC which may makeappropriate recommendations including the need forFrevalidation. Baseline data older than 3 years will not be usedfor preparation of EIA/EMP report. In any case, the PH shallhave to be considered afresh in such cases.”

GThe MoEF-CC clarified that where the time period prescribedfor the ToR has expired, the regulatory authority “shall not” considerany further extension and a project proponent seeking to continue theproject must initiate the EIA process de novo. This includes thesubmission of fresh information in Form 1 and the prescription of a newToR to guide the preparation of the EIA report. The extraordinaryHprescription of conducting the EIA process afresh was in keeping with the commitment to a framework of environmental governance whichaccounts for the dynamic nature of the environment.

43. By another notification dated 7 November 2014, the MoEF-CC issued a notification clarifying the time limit prescribed for ToRs aswell as the consideration of EIA reports by the SEAC which relied onprimary data older than three years. The notification, in so far as it isrelevant reads:

“2. The matter has been further examined in the Ministry in thelight of the decision taken as part of clearance reform and it is feltthat it would not be logical to start the process of environmentclearance de novo including taking fresh Terms of Reference(TORs), if the base line data collected for preparation ofEIA/EMP report and/or public consultation are more thanthree years old.

3. Thus, it has been decided to substitute para 2(v) of the abovereferred Office Memorandum No. J-110113/41/2006-IA.II(I)(part) dated 22.08.2014 with the following:

“(v) (a) All the projects which have been recommended by theExpert Appraisal Committee (EAC) shall be considered by theCompetent Authority even if data collected has become morethan three years old as the ToRs itself used to have threeyears validity and extendable by one more year.

(b) All the projects where the project proponent have alreadysubmitted their EIA/EMP Report for consideration by the EACthough the cases have still not been placed before the EAC andmeanwhile the data has become more than three years old, shallbe considered for the same reasons as given in para (a) above….”

This notification stipulated that the ‘concerned authority’ shallconsider EIA reports for the grant of EC even where the primary datarelied upon was collected beyond three years from the preparation ofthe EIA report. This was because the ToR itself was extendable beyondthree years by an additional year. Thus, where the EIA report is preparedwithin the prescribed time period for the validity of the ToR, the concernedauthority may consider an EIA report which relies on primary data whichwas collected more than three years ago i.e. in the fourth year preceedingthe preparation of the EIA report. The effect of the notification was to A

B

C

DE

F

G

H

Aprescribe a uniform validity period of four years for both ToRs and theprimary data collected. However, the stipulation that a fresh EIA processmust be undertaken where the ToR has expired was retained.

44. In the present case, the ToR was issued on 21 November2009, prior to the issue of the OM dated 22 March 2010. Hence, byBvirtue of the notification, the appellant was required to submit the EIAreport within four years from the date of the issuance of the ToR i.ebefore 21 November 2013. The SEAC was under a correspondingobligation to refuse the consideration of any EIA report prepared afterthe expiry of the ToR. Public hearing was conducted belatedly only on 6February 2014 and the EIA report prepared thereafter was placed beforeCthe SEAC only on 2 August 2014, nearly a year after the ToR had expired.We cannot gloss over the failure of the project proponent to comply withthe OMs issued by the MoEF-CC prescribing a time limit for the validityof the ToR. The decision of the SEAC to proceed with the EIA report aswell as seek additional information from the project proponent despiteDthe expiry of the ToR suffers from a non-application of mind and isunsustainable.

45. Moreover, primary data was collected in December 2009 andFebruary 2010. The EIA report was prepared after the public hearingwas conducted in February 2014, nearly a year after the primary dataEhad expired in terms of the OMs issued by the MoEF-CC. In the finalEIA report prepared in October 2014, it is stated:

“1.8 Study Period

To prepare the Rapid Environmental Impact Assessment (REIA)report for the proposed project, the data was collected fromFDecember to February (2009-2010) in the study area. MicroMeteorological parameters were recorded such as wind speed,wind direction and relative humidity on hourly basis during thestudy period.”

“3.5 Monitoring period

G

Meteorological data was collected for the study area during themonths of winter (December, January and February (2009-2010), Wind Speed, Wind Direction, Temperature and RelativeHumidity were recorded on hourly basis for the total study period”

H

46. Admittedly, the EIA reports prepared in August and October2014 relied on primary data which was collected between the months ofDecember 2009 and February 2010. The EIA report was prepared priorto the coming into force of the OM dated 7 November 2014 by whichthe MoEF-CC extended the validity of primary data collected from aperiod of three years to four years. Even if the benefit under thenotification were extended to the appellant, it was duty bound to collectfresh primary data upon the expiry of four years from the date of issuanceof the ToR i.e. 21 November 2013. This was evidently not done. Thisbeing the case, there is no manner of doubt that the final EIA reportprepared on the basis of an expired ToR and primary data was incontravention of the OMs dated 22 March 2010, 22 August 2014 and 7November 2014 issued by the MoEF-CC and could not form the basisof a validly issued EC.

47. It is also pertinent to note that a Rapid EIA along with a socio-economic study was prepared by M/s Ramky Enviro Engineers Ltd.,the EIA consultantfor the PRR project on behalf of the appellant inNovember 2010. This EIA report relied on primary data collected betweenthe months of December 2009 and February 2010 and analysed theimpact of the proposed PRR project on the environment. A perusal ofboth the 2010 rapid EIA report and the EIA report prepared in October2014 reveals that the data as well as the analysis of the impact of theproposed PRR project on the environment in the 2014 report is similar tothat in the 2010 Rapid EIA report. It appears that the EIA consultant hasreproduced verbatim, portions of the Rapid EIA report which wasprepared in the year 2010. No effort was taken by the appellant to ensurethe fresh collection of data in compliance with its obligations under theOMs issued by the MoEF-CC. In this view of the matter, the contentionurged on behalf of the respondents that there was a substantial delay inthe carrying out of the EIA process, vitiating the process commendsitself for our acceptance.

48. In the rejoinder and brief note of submissions filed before thisCourt by the appellant, it was contended that any delay in the collectionof primary data was remedied by the collection of fresh samples in replyto the questions raised by the SEAC in its 115th meeting dated 11-12August, 2014. The primary data furnished in reply, it was urged, dated tothe year 2014 and not 2010.In assessing this contention, it is necessaryto advert to the questions raised by the SEAC to the appellant. The AB

C

D

E

F

G

H

ASEAC, at its 115th meeting noted shortfalls in the information submittedby the appellant and decided to obtain additional information. This wascommunicated to the appellant on 28 August 2014. The SEAC soughtadditional information on the following:

“

B

1. EIA accredited consultant for Highway projects was not present2. Declaration of experts involved in preparation of EIA report isnot furnished in the report

3. Accessibility to all villages on either sides of the proposed roadhas to be preferably through underpasses.C4. Baseline data of hardness of borewell water furnished in thereport is found to be wrongly analysed.

5. Surface water analysis report is found to be with wrong results.

6. All the parameters required to be tested as per NABETDguidelines are to be analysed and furnished with lab reports.

7. Sampling locations are to be marked on maps windrose diagramto be superimposed.

8. In AAQ analysis, CO concentration is reported to be atdangerous level and this has to be checked again.E

9. EMP to be revised and has to be site specific.

10. Sensitive location monitoring to be explicitly mentioned in EIAreport with details of location.

11. Regarding information on forest land in the EIA report thereFare contradicting information in the report.

12. Trees to be planted are to be known in advance to growsamplings.

13. Soil analysis to be revalidated.

G14. Borrow area of earth to be part of EIA report.

15. Emergency relief operation to be included.

16. As per the proposals submitted in page no 10. “No forest landis involved in the proposed project. Hence forest clearance is notrequired” whereas in the same proposal page no 21 “the totalHforest land to be diverted is estimated to be 1.5ha in the jarakbande kaval at Ch. 12.000” to 12.500. The contradictory information tobe explained with documents.

17. In the same proposal under the head 10.3 afforestation plan :“Species proposed for afforestation plan are Avicennia officinalis,Avicennia alba, Rhizophora mucronara & Rhizophora aciculateetc., they are mangrove-tropical tree growing in shoes ie., theyare endemic in sea shores (coastal area in the Kundapur coast)etc.

18. PP is advised to consult the forest wing under BDA to design(1 to 2) rows depending on the availability of the area) the stripplantations on either side of the proposed road with suitable nativefruit yielding shade bearing & fast growing species (instead ofthis consultant), to improve the micro climate. Committee decideto obtain additional information sought above and to recall theproposal alter receipt of the information.”

By its letter dated 12 November 2014, the appellant provided tothe SEAC a point-wise reply to the information sought along with additionalsamples on ground water, surface water and soil.

49. The questions framed by the SEAC and responses filed bythe appellant demonstrate that there existed serious deficiencies in theEIA report which was submitted to the SEAC. This included outdateddata on the AAQ air analysis, soil quality, forest land and the number oftrees to be planted. The SEAC noted certain shortfalls which concernedlimited aspects of the EIA report including the baseline data of hardnessof borewell water, soil analysis and forest land. In addition to this, theSEAC directed that certain samples collected were to be marked on themap submitted to the SEAC in the EIA Report. Significantly, the SEACnoted the discrepancy concerning the disclosure of the existence of forestland. This aspect shall be explored in the course of the judgment.

50. The SEAC framed questions and sought information whichwas clarificatory in nature and covered specific substantive aspects ofthe data submitted in the EIA report. The EIA report on the other handcovers a wide range of matters which include terrain, topography, landrequirements, terrain classification, wind and noise pattern analysis, airquality analysis, surface and ground water analysis, soil environmentanalysis, impact of flora and fauna and environmental monitoring plans.

51. The submission of additional fresh data on a few points raisedin the form of a query on behalf of the SEAC does not remedy thegeneral obligation to ensure that the EIA report was prepared within a A

B

C

DE

F

G

H

Atime period of four years from the date of the issuance of the ToR,relying on primary data that was no older than four years. Merely becausesome additional information was sought which required the furnishing ofadditional details and the collection of fresh samples, it cannot be saidthat such an exercise cures the defect arising from the preparation of anEIA report outside the time period prescribed by the MoEF-CC.BSignificantly, even at the relevant time when information was soughtfrom the project proponent, both the ToR as well as the primary dataupon which the EIA report was prepared was beyond the period of theirvalidity. In such a case, the SEAC, by seeking additional information,has traversed beyond the power conferred upon it under the 2006CNotification.

52. The SEAC proceeded to recommend to the SEIAA the grantof the EC to the PRR project in contravention of the obligations stipulatedunder the OMs issued by the MoEF-CC. Significantly, the SEACconsidered the final EIA report only at its 121st meeting between 11 –D18 November 2014 when the OM dated 22 August 2014 issued by theMoEF-CC was in force. The SEAC was under an obligation to directthe appellant to conduct the EIA process de novo. The SEAC and theproject proponent cannot circumvent the obligation to ensure reliance oncontemporary data by seeking additional information beyond theprescribed validity of the ToR and primary data. The SEAC has clearlyEerred inrecommending to the SEIAA the grant of EC despite the non-compliance by the appellant with the prescribed time limit for thepreparation of the EIA report.

G Deficiencies in the EIA report

G.1 Accreditation of the EIA consultantF

53. In the written submissions submitted by the appellant, it wascontended that the EIA process was undertaken on behalf of the appellantby M/s RamkyEnviro Engineers Pvt. Ltd., a non-accredited EIAconsultant. This, it was submitted, was in contravention of the OM datedG2 December 2009 issued by the MoEF-CC mandating that only sector-specific accredited EIA consultants should be engaged to carry out theEIA process.

54. The MoEF-CC, by its notification dated 2 December 2009,mandated the registration of EIA consultants under the scheme ofAccreditation and Registration of the National Accreditation Board ofH

Education and Training/Quality Council of India. The relevant portion ofthe notification reads:

“…It has been felt in the Ministry that there is a need to enhancethe quality of EIA reports as the Consultants generally, undertakepreparation of EIA/EMP Reports in many sectors and in someinstances without requisite expertise and supporting facilities likelaboratories for testing of samples, qualified staff etc. The goodquality EIA Reports are pre-requisites for improved decisionmaking.

…

3. After detailed consideration of the issued relating to theaccreditation of the Consultants, following decisions have beentaken:

· All the Consultants/Public Sector Undertaking (PSUs)working in the area of Environmental Impact Assessmentwould be required to get themselves registered under thescheme of Accreditation and Registration of the NABET/QCI.

· Consultant would be confined only to the accreditedsectors and parameters for bringing in more specificity inthe EIA document.

…

4. It is decided, in the above factual matrix that no EIA/EMPReports prepared by such Consultants who are not registeredwith NABET/QCI shall be considered by the Ministry after 30thJune, 2010.”

55. The MoEF-CC prescribed that it is mandatory for everyconsultant or PSU acting as an EIA consultant to get themselvesregistered under the accreditation scheme of the NABET/QCI. Moreover,a consultant would be confined to the sector for which they receiveaccreditation to ensure expertise and specificity in the carrying out ofthe EIA process. This was also to ensure the availability of facilities likelaboratories. It was stated that a good quality EIA report is a pre-conditionfor improved decision-making. In the written submissions before thisCourt, the appellant urged that M/s Ramky Enviro Engineers Pvt. Ltd.was hired in November 2009 upon the issuance of the ToRs prior to the A

B

C

D

E

F

G

H

Acoming into force of the OM dated 2 December 2009. Consequently,there was no obligation to engage an accredited consultant for thepreparation of the EIA report. Be that as it may, Ramky Enviro EngineersPvt. Ltd, Hyderabad was granted the status of a ‘consultant withaccreditation’ vide OM dated 30 June 2011 issued by the MoEF-CC. Atthe time of the preparation of the EIA report which was submitted to theBSEAC, the EIA consultant had received accreditation. However, thelearned counsel appearing on behalf of the respondents has also placedon record a copy of the minutes of the 4th Accreditation CommitteeMeeting for Re-Accreditation held on 22 November 2013. The case ofRamky Enviro Engineers Pvt. Ltd, Hyderabad was considered in theCfollowing terms:

“21. Ramky Enviro Engineers Pvt. Ltd., Hyderabad The case of Ramky Enviro Engineers was discussed earlier inRAAC meeting dated Oct. 28 2013. Inadequacies with respectto a) Variation in names of candidate in list of experts/personsDincluded in EIA b) Implementation of QMS and c) Quality of EIAwere observed. RamkyEnviro was asked to explain the reasonsfor shortfalls to Accreditation Committee (AC)

…

Results of the Re-accreditation (RA) assessment are given below:

ERamky Enviro Engineers have scored more than 60% as anorganization and therefore qualifies for Cat. A EIA projects.However, in respect of Completeness and quality of EIA, themarks are less that 60% indicating scope of improvement videpoints mentioned below in relevant section.

2.1.1 Scope of accreditation

F

Sl. Sector No. as NABET Name of SectorCat.No. Scheme 1 1 Mining A 2 40 Thermal Power plants A 3 20 Petrochemical based processing A 4 21 Synthetic organic processing A 5 1 Industrial estate/parks/SEZ A 6 32 TSDF A 7 38 Building and Large construction A 8 39 Area and Township projects A

G

H

56. The Committee noted the deficiencies in the performance ofM/s Ramky Enviro Engineers Pvt. Ltd. as an EIA consultant and indicateda scope for improvement. The Committee then proceeded to record thesectors for which M/s Ramky is granted accreditation. Conspicuous inits absence is the grant of accreditation for serving as an EIA consultantfor highway projects. When the final EIA report for the PRR projectwas prepared in August/October2014, M/s Ramky lacked accreditationto serve as an EIA consultant for highway projects. This aspect shall beborne in mind in deciding the eventual directions which this Court seeksto issue.

G.2 Forest land

57. Essentially, the contention urged on behalf of the respondentsin its written submissions before this Court is that there was a patent andabject failure on the part of the appellantas project proponent, to disclosethe diversion of forest land for the proposed PRR project. The appellant,it was contended, concealed material information concerning the diversionof forest land and absent the requisite forest clearance, the EC grantedfor the PRR project stands vitiated.

58. In the draft EIA report prepared for the PRR project, it wasstated:

“The Forest (Conservation) Act, 1980

…No forest land is involved in the proposed project. Hence, Forestclearance is not required.”

Despite an indication that the proposed PRR project did not involvethe diversion of forest land, the draft EIA report stated:

“…As per the proposed design, the total forest land to be divertedis estimated to be 1.5 Ha and the chainage wise details of thesame are presented as:

Table 2.2 B. Details of Forest Area proposed to be diverted forthe Project Road Sl.No.Proposed Length ForestVillageSurvey No.Area of the chainage (Km) forest to be diverted in HA 1 Ch 12.000 763 M Jarakabandekavalu Yelahanka 59 1.5 to 12.500

A

B

C

D

E

F

G

H

AThe draft EIA report noted that 1.5 hectares of forest land inJarakabande kavalu is proposed to be diverted between linkages Ch12.000 and 12.500 for a portion of the proposed road totaling 763 meters.A similar contradiction is noted in the final EIA report prepared in October,2014:

B“Initial portion of the Highway is along protected forest areas.From the site visits and discussion with officials, it is inferred thatthere are no noticeable habitats or wild or endangered animalhabitats along close vicinity of the project road…”

The EIA report affirms at numerous places that 1.5 hectares ofCforest land will be affected by a part of the project. Despite this, the EIAreport proceeds to state:

E

59. The EIA report proceeds on the assumption that no forestclearance is required despite the diversion of 1.5 hectares of forest land.No explanation has been provided by the appellant either in the EIAreport or in the written submissions before this Court as to why it wasexempt from seeking the requisite forest clearance. The only indicationFof remedying the loss of forest cover provided in the EIA report is thus:

“10.4 Afforestation Plan

Affected Area – Around 1.50 Ha.

Area proposed to be afforested – 4.5 Ha (three times the affectedGarea)

Afforestation Program will be implemented through the ForestDepartment, BDA and regular monitoring will be ensured.

Land will be identified in consultation with state Forest Department,HBangalore.”

BENGALURU DEVELOPMENT AUTHORITY v. MR. SUDHAKARHEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

The contradictory stand by the appellant on the forest coverproposed to be diverted for the proposed project was noted by the SEACin its 115th meeting dated 11-12 August, 2014. The SEAC soughtadditional information from the appellant on numerous grounds, of whichone concerned the potential loss of forest cover. The SEAC, in its letterto the appellant, noted the contradictory stand of the appellant and stated:

“…16. As per the proposals submitted in page no 10. “No forestland is involved in the proposed project. Hence forest clearanceis not required” whereas in the same proposal page no 21 “thetotal forest land to be diverted is estimated to be 1.5ha in thejarakbande kaval at Ch. 12.000” to 12.500. The contradictoryinformation to be explained with documents.”

The appellant furnished a pointwise reply to the question raisedby the EAC. It replied to the question concerning forest land by stating:

“As per the proposed design the total forest land to be diverted isestimated to be 1.5 ha in the Jarakbande Kaval at Sh.12.000 to12.500.

25 acres of land available in possession with BDA is proposed tobe given to Forest Department in lieu of 25 acre of Forest Land(PRR Chainage between 12[th] and 13[th] Km in Survey No. 59 ofJarakbande Kaval approved vide by authority Subject No. 80/89dated 17.03.2009.) needed to PRR.”

The appellant confirmed that 1.5 hectares of forest land is proposedto be diverted. It was stated that in lieu of the 25 acres of forest landrequired, the appellant shall make available to the Forest Department 25acres of land available with it.

60. We cannot gloss over the patent contradiction of the appellantas the project proponent in disclosing the existence of forest land to bediverted for the purposes of the PRR project. Despite a clear indicationthat a total 1.5 hectares of forest land is to be diverted for the purpose ofthe PRR project, the appellant sought to remedy its failure in seeking therequisite clearances in a post facto manner by stipulating that 25 acresof land available with it is to be given to the forest department in lieu ofthe forest cover proposed to be diverted for the project. Post factoexplanations are inadequate to deal with a failure of due process in thefield of environmental governance.While the appellant submitted to theEAC that it had already obtained the consent of the forest department to AB

C

DE

F

GH

Adivert the proposed forest land, a contradictory stance was taken in thewritten submissions filed by the appellant:

“It is stated herein that the PRR passes through 25 acres of forestland situated in Jarakbande Kaval Forest Area, Yelahanka Hobli,Bangalore North Taluk and since the alignment inevitably passedBthrough this, the forest department was requested on 28.08.2018to handover the forest land to the Appellant for the purpose of thePRR project. Thereafter, the forest department replied on12.01.2019 requesting for alternate land of 25 acres.”

It was stated by the appellant that it was only on 28 August 2018Cthat it sought to remedy its failure in obtaining the requisite forest clearanceby requesting the forest department to handover the forest area involvedin the project. The appellant, in its rejoinder filed before this Court states:

“…It is admitted that the PRR does indeed pass throughthe forest land in Jarakabande Kavalu forest area. It is alsoDpertinent to point out here that the Appellant has also takennecessary steps to ensure that land measuring 25 acres have alsobeen provided as alternate land for the afforestation plan due tothe forests to be cleared in the Jarakabande Kavalu forest areaas shown in pg. 238 of IA. No. 53243. The contradictionsmentioned in the EIA report have subsequently stoodEcorrected and clarified before the EAC and the SEIAA.”

In addition to the admission by the appellant of the contradictionsin the EIA report, it sought to substitute the requisite forest clearancewith an agreement with the forest department to provide an alternativeFsite for afforestation. This is not sustainable in law. Compliance with the2006 Notification and other statutory enactments envisaged in the EIAprocess cannot be reduced to an ad-hoc mechanism where the projectproponent seeks to remedy its abject failure to disclose materialinformation and seek the requisites clearances at a belated stage.

G61. The Karnataka SEIAA, in its affidavit before the NGT soughtto contend that the EC was granted subject to the appellant obtaining therequired forest clearance. It was stated:

“Forest AreaH

(b) Environmental Clearance has been provided by SEIAA is forthe present alignment of the road as submitted to SEIAA and anychange in the scope of the project requires fresh appraisal. In thisregard, it may be noted that details of the forest land involved arecovered in the Environment Impact Assessment Report. Theproponent has decided to provide 25 acres of land available withthem to the Forest Department.

It may also be noted that as per law, clearances from other statutoryauthorities is not mandatory for consideration of the applicationfor Environment Clearance (hereafter, also referred to as “EC”)as it is prior Environmental clearance. Nonetheless, specificconditions have been imposed in the EC that such permission shallbe obtained by the project proponent.

…

It is also important to note that the EC is subject to compliancewith the conditions requiring obtaining of required clearances fromthe competent authority in accordance with the applicable lawsuch as prior clearances relating to forests and lakes. Any non-compliance will be construed as a violation of the EC conditionsand will be dealt with in accordance with law.”

In the view of the Karnataka SEIAA, there was no deficiency inthe grant of the EC so long as specific conditions were imposed on theproject proponent to seek the requisite clearance.

62. Prior to the notification, prior clearance from regulatory bodiesor authorities was not required. The MoEF-CC, by a notification dated31 March 2011, prescribed the procedure to be followed for projectswhich involve forest land in the grant of an EC. The relevant portionreads:

“…In this regard, reference is also invited to para 8(v) of the EIAnotification, 2006 which reads as follows:

“Clearances from other regulatory bodies or authorities shall notbe required prior to receipt of applications or prior environmentalclearance of projects or activities, or screening, or scoping, orappraisal, or decision by the regulatory authority concerned, unlessany of these is sequentially dependent on such clearance eitherdue to a requirement of law, or for necessary technical reasons.

…

AB

C

D

E

F

G

H

A

However, in view of the complexity of the issues involved, thematter has been considered further in the Ministry and insuppression of the earlier instructions, it has now been decided toadopt the following procedure for consideration of such projects.

…

B

I. (B) Projects for which TORs have already been prescribedby the proposal for environmental clearance is yet to besubmitted:

In case of the proposals, which involve forestland, in part or it full,and for which TORs have already been prescribed, the projectCproponents are advised to ensure that the requisite stage-I forestryclearance has been granted and its copy is submitted along withtheir application/proposal for environmental clearance.Alternatively, the proponent should delete from their landrequirement, the forestland involved in the project and the proposalDso amended without any forestland may be submitted for appraisalby the EAC.

In case of projects where forest diversion (Stage I clearance)has been approved for part of the total forestland involved in theproject, the proposal will be considered only for the land for whichEforest diversion has been approved and the non forestland, ifany…”

63. The MoEF-CC stipulated that where ToRs have been issuedand the EIA report for the grant of EC is yet to be submitted, projectproponents must ensure that the requisite forest clearance has beengranted. A copy of the grant should be submitted along with theirFapplication for the grant of EC. Alternatively, the project proponent maydelete from the proposed project any forest land that may be affectedby the project. The MoEF-CC clarified that where forest clearance hasbeen obtained for only a part of the total forestland involved in the project,the proposal will be considered only to the extent of the land for whichGforest diversion has been approved.

64. By two subsequent notifications dated 9 September 2011 and18 May 2012, the procedure concerning the grant of EC for projectsinvolving forestland stood amended in the following terms:

H

BENGALURU DEVELOPMENT AUTHORITY v. MR. SUDHAKARHEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

“…

(ii) At the stage of consideration of proposals for EC in respect ofprojects involving forestland, the project proponent would informthe respective EACs about the status of their application forforestry clearance along with necessary supporting documentsfrom the concerned Forest Authorities. It will clearly be informedto the EAC whether the application is at the State level or at theCentral level. The EAC will take cognizance of the involvementof forestland and its status in terms of forestry clearance andmake their recommendations on the project on its merits. Afterthe EAC has recommended the project for environmentalclearance, it would be processed on file for obtaining decision ofthe Competent Authority for grant of environmental clearance. Inthe cases where the Competent Authority has approved the grantof environmental clearance, the proponent will be informed of thesame and a time limit of 12 months, which may be extended inexceptional circumstances to 18 months, a decision on which willbe taken by the Competent Authority, will be given to the proponentto submit the requisite stage-I forestry clearance. The formalenvironmental clearance will be issued only after the stage-I forestry clearance has been submitted by the proponent.

(iii) In the eventuality that the stage-I forestry clearance is notsubmitted by the project proponent within the prescribed time limitmentioned at para (ii) above, as and when the stage-I forestryclearance is submitted thereafter, such projects would be referredto EAC for having a relook on the proposal on case by casebasis depending on the environmental merits of the projectand the site. In such a situation the EAC may either reiterate itsearlier recommendations or decide on the need for its reappraisal,as the case may be. In the eventuality, a reappraisal is asked for,the Committee will simultaneously decide on the requirement ofdocuments / information for reappraisal as also the need for afresh public hearing.”

65. Project proponents are duty bound to disclose the existenceof forest land and inform the SEAC of the status of their application for A

B

C

D

E

F

G

H

Aforest clearance at the time of submitting the EIA report for the grant ofthe EC. Where the competent authority has granted the EC for a project,the project proponent is then duty bound to obtain and submit to thecompetent authority the requisite stage I forest clearance for the proposedproject within 12 months or 18 months, as the case may be. Where theproject proponent fails to submit the requisite forest clearance within theBprescribed time, the EAC or the SEAC are authorised to reexamine theproject and decide whether there is a need for the reappraisal of theproject. The process envisaged for the disclosure of the forest clearanceprocedure as well as the submission of the grant of forest clearancesub-serves the purpose of ensuring timely and adequate protection ofCforest land. Where the EAC or the SEAC is of the opinion that additionaldocuments are required upon the failure of the project proponent to submitthe requisite forest clearance within the prescribed time, it may directthat a fresh public hearing be conducted.

66. The appellant attempted to remedy its contradictory stand onDthe forest land proposed to be diverted and its failure to obtain the requisiteforest clearance by submitting to the SEAC an undertaking to ensureafforestation in an alternate plot of land owned by it in collaboration withthe forest department. Such a procedure is neither envisaged under the2006 Notification nor is in compliance with the notifications issued bythe MoEF-CC from time to time. Similarly, the SEAC was under anEobligation to ensure that the project proponent had complied with thestipulated procedure for the grant of forest clearance. Instead, the SEACproceeded on the clarification issued by the appellant in contravention ofthe OMs dated 31 March 2011, 9 September 2011 and 18 May 2012.Despite the numerous deficiencies that were noted in the minutes of theFSEAC meeting, it proceeded to recommend to the SEIAA the grant ofEC for the PRR project. The decision of the SEAC to recommend tothe SEIAA the grant of the EC, despite the contradictory stand of theappellant as well as its failure to furnish adequate reasons as to why itwas exempt from seeking forest clearance, suffers from a non-applicationof mind.G

G.3 Trees

67. In the written submissions filed before this Court, it wascontended by the respondents that there was a material concealment bythe project proponent of the number of trees proposed to be felled forHthe PRR project. While the appellant stated that only 200 – 500 trees BENGALURU DEVELOPMENT AUTHORITY v. MR. SUDHAKARHEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

were required to be felled, the number was in fact as high as 16,000trees. The appellant, as project proponent, stated in the 2014 EIA report:

“Around 519 plants are felled for the project; the minimum ofthree times the number of felled plant will be replanted in thenearby areas”

The Deputy Conservator of Forests, BDA, in a reply dated 24April 2009 to a right to information query stated:

“With respect to the information sought under the Right toInformation Act, 2005, the number of trees that will be cut for theformation of the Peripheral Ring Road – Part I have been providedbelow:

Sl. Information sought Information provided No. for Here is the The below mentioned trees information sought belong to the Horticulture & regarding cutting of Forest Department will be cut trees for the for the formation of the formation of the peripheral ring road Part – I Peripheral Ring Road 1.Coconut trees: 3837 Part - I 2.Mango trees: 3142 3.Guava trees: 1361 4.Sapota trees: 0818 5.Arecanut trees: 0287 6.Jamun trees: 0084 7.Jackfruit trees: 0059 8.Tamarind trees: 0040 9.Teak trees: 0201 10. Silver oak trees: 0028 11. Neem trees: 0028 12. Eucalyptus trees: 7000 Total 16,785

68. The Deputy Conservator of Forests revealed that around16,785 trees were proposed to be cut for the purpose of executing thePRR project. The abject failure of the project proponent in disclosingthe number of trees required to be felled is also evident from the rejoinderfiled by appellant before this Court. It was submitted:

A

B

C

D

E

F

G

H

A

“13. In reply to Para No. 6: As had been stated earlier, theclarifications regarding cutting of trees and the corrections havebeen made subsequently and additionally a further 25 acres ofland has been provided for the purpose of afforestation in analternate piece of land. The same has been shown in pg. 184 ofI.A. No. 53243/2019.”

B

The EIA report prevaricated by recording that the area requiredfor the proposed PRR project has only a few trees. Though thedevelopment of infrastructure may necessitate the felling of trees, theprocess stipulated under the 2006 Notification must be transparent, candidand robust. Hiding significant components of the environment fromCscrutiny cannot be an acceptable method of securing project approvals.There was a serious lacuna in regard to disclosures and appraisal on thisaspect of the controversy.

DG.4 Pipelines

69. The EIA process was challenged on the ground that by virtueof a notification dated 12 June 1999, the Central Government acquiredcertain lands for laying a petroleum pipeline between Mangalore andBangalore. Petronet MHB Ltd., by its letters dated 7 November 2005Eand 21 November 2007 sought to inform the appellant of the potentialcrossover of the PRR project over the pipelines. The same was reiteratedin its meeting with the appellant dated 4 February 2008. Petronet MHBLtd.was of the opinion that as the pipelines contain hazardous materialwhich is highly inflammable, care should be taken to either relocate partsof the project or ensure that adequate safeguards were put in place.F

70. The respondents have placed on record the minutes of themeeting dated 2 February 2008 between the appellant authority and therepresentatives of M/S. Petronet MHB Limited. It was noted that theproposed PRR project crosses the PETRONET pipeline at three locations– PRR CH 7600, PRR CH 29100 to 29500 and CH 31100 to 31800 andGPRR CH 39500. It was agreed that a joint-inspection would take placefor one crossing, while for the other two crossings it was agreed that thePRR project would be raised for clearance height. It was stated:

“The MD, M/S. Petronet MHB Limited agreed that the PRRmay be taken over at higher level with a clearance of minimumH5.20 m from the ground level and the crossing shall be preferably at right angles. He also insisted that no supports shall be constructedwithin their Right of user (ROU) of 18.00.”

In this view of the matter, the appellant sought to take adequateprecautions to ensure that the proposed PRR project did not cross apipeline and where it did, it was at a sufficient height without the use ofsupport pillars. The respondent contended that that the appellant wasconstrained to revert to the proposed alignment prior to the meeting byvirtue of various orders passed by the High Court of Karnataka. Thisshall be dealt with in the directions which this Court seeks to issue.

H Appraisal by the SEAC

H Appraisal by the SEAC

71. In addition to the finding that the SEAC erred in recommendingto the SEIAA the grant of EC on the basis of an expired ToR and primarydata, there is another aspect of the matter that warrants the attention ofthis Court. The SEAC, in its 121st meeting between 11 – 18 November2014 proceeded to recommend to the SEIAA the grant of EC for thePRR project. Appraisal by the SEAC is structured and defined by the2006 Notification. At this stage, the SEAC is required to conduct “adetailed scrutiny” of the application and other documents including theEIA report submitted by the applicant for the grant of an EC. Upon thecompletion of the appraisal process, the SEAC makes “categoricalrecommendations” to the SEIAA either for: (i) the grant of a prior ECon stipulated terms and conditions; or (ii) the rejection of the application.Significantly, the recommendations made by the SEAC for the grant ofEC, are normally accepted by the SEIAA and must be based on“reasons”. At its 121st meeting, the SEAC recorded the following reasonsfor its recommendations:

“PP and environmental consultant were present in the meeting.

PP stated that the project was conceived and the consultant wasengaged in 2003 prior to 2006 EIA Notification. Now JICA isinsisting for EC.

PP have submitted the compliance for the above queries raisedby the committee vide their letter dated 12.11.2014.

After due deliberations the committee decided to recommend theproposal to SEIAA for consideration to issue EC.

PP has submitted an undertaking on the day of the meeting on thefollowing points:

AB

C

DE

F

G

H

A

1. To provide pedestrian crossings in the utility crossings facilitytaking all the precautions.

2. Adequate CD works

3. To maintain Raja Kalave

4. To take up afforestation work separately B

5. Major crossings of NH/SH/MDR/VR

6. Accessibility to proposed road from all villages withoutcharging toll.

Action to be taken: Secretary, SEAC to submit the proposal toCSEIAA accordingly.”

72. The reasons furnished by the SEAC must be assessed withreference to the norm that it is required to submit reasons for itsrecommendation.The analysis by the SEAC is, to say the least, bothperfunctory and fails to disclose the reasons upon which it recommendedDto the SEIAA the grant of EC for the PRR project. The SEAC proceedsmerely on the reply furnished by the appellant to the queries raised bythe SEAC at its 115th meeting dated 11-12 August, 2014. In this view,the procedure followed by the SEAC suffers from a non-application ofmind.

E

73. The SEAC is under an obligation to record the specific reasonsupon which it recommends the grant of an EC.The requirement that theSEAC must record reasons, besides being mandatory under the 2006Notification, is of significance for two reasons: (i) The SEAC makes arecommendation to the SEIAA in terms of the 2006 Notification. TheFregulatory authority has to consider the recommendation and convey itsdecision to the project proponent. The regulatory authority, as para 8(ii)of the 2006 Notification provides[18], shall normally accept therecommendations of the EAC. Thus, the role of the SEAC in the grantof the EC for a proposed project is crucial; and (ii) The grant of an ECis subject to an appeal before the NGT under Section 16 of the NGT ActG2010. The reasons furnished by the SEAC constitute the link upon whichthe SEIAA either grants or rejects the EC. The reasons form the materialwhich will be considered by the NGT when it considers a challenge tothe grant of an EC.

18 ‘‘(ii) The regulatory authority shall normally accept the recommendations of theHExpert Appraisal Committee or State Level Expert Appraisal Commitee concerned...’’

74. In Shreeranganathan K P v Union of India[19], the grant ofan EC to the KGS Aranmula International Airport Project was challenged.The NGT found fault with the process leading upto the grant of the ECsince sector specific issues had not been dealt with. The NGT extensivelyreviewed the information submitted with regard to the construction ofthe airport and held thus:

“182. … a duty is cast upon the EAC or SEAC as the case maybe to apply the cardinal principle of Sustainable Development andPrinciple of Precaution while screening, scoping, and appraisal ofthe projects or activities. While so, it is evident in the instant casethat the EAC has miserably failed in the performance of its dutynot only as mandated by the EIA Notification, 2006, but has alsodisappointed the legal expectations from the same. For a hugeproject as the one in the instant case, the consideration forapproval has been done in such a cursory and arbitrarymanner without taking note of the implication andimportance of environmental issues. …Thus, the EAC hasnot conducted itself as mandated by the EIA Notification,2006 since it has not made proper appraisal by consideringthe available materials and objections in order to makeproper evaluation of the project before making arecommendation for grant of EC.”

The Court held that the EAC had not conducted a proper appraisalgiven its failure to consider the available material and objections beforeit. The EAC had thus failed to conduct a proper evaluation of the projectprior to forwarding to the regulatory authority its recommendation.

75. In Lafarge Umiam Mining Private Limited v Union ofIndia,[20 ]an application was made under the 1994 notification for thegrant of an EC to a proposed limestone mining project at Nongtrai Village,East Khasi Hills District, Meghalaya. A three judge Bench of this Courtrejected the challenge and upheld the grant of the EC to the proposedproject. Chief Justice S H Kapadia noted that the doctrine ofproportionality must be applied to matters concerning the environmentas part of judicial review. The principles of judicial review inenvironmental matters have been enunciated thus:

19 2014 ALL (I) NGT Reporter (1) (SZ) 1

20 (2011) 7 SCC 338

AB

C

D

E

F

G

H

A“In the circumstances, barring exceptions, decisions relating toutilisation of natural resources have to be tested on the anvil ofthe well-recognised principles of judicial review. Have all therelevant factors been taken into account? Have any extraneousfactors influenced the decision? Is the decision strictly inaccordance with the legislative policy underlying the law (if any)Bthat governs the field? Is the decision consistent with the principlesof sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis ofrelevant considerations, arrived at a balanced decision? Thus, theCourt should review the decision-making process to ensure thatCthe decision of MoEF is fair and fully informed, based on thecorrect principles, and free from any bias or restraint.”

76. The SEAC, as an expert body, must speak in the manner ofan expert. Its remit is to apply itself to every relevant aspect of theproject bearing upon the environment and scrutinise the documentDsubmitted to it. The SEAC is duty bound to analyse the EIA report.Apart from its failure to repudiate a process conducted beyond theprescribed time period stipulated by the MoEF-CC, the SEAC failed toapply its mind to the abject failure of the appellant in conducting the EIAprocess leading upto the submission of the EIA report for the grant ofEC. The SEAC is not required to accept either the EIA report or anyEclarification sent to it by the project proponent. In the absence of cogentreasons by the SEAC for the recommendation of the grant of EC, theprocess by its very nature, together with the outcome, stands vitiated.

I Courts and the environment

I Courts and the environment

F77. Courts today are faced with increasing environmental litigation.A development project that was conceptualized as early as in the year2005 has surfaced before this Court over 15 years later. The period thathas led up to the present litigation has involved a myriad of decisions andprocesses, each contributing to the delay of a project that was outlinedto sub-serve a salient development policy of de-congesting the city. WhereGproject proponents and institutions envisaged under the 2006 Notificationabdicate their duty, it is not only the environment that suffers a seriousset-back, but also the development of the nation. In the eventual analysis,compliance with the deliberative and streamlined process envisaged forthe protection of the environment ensures a symbiotic relationship betweenHthe development of the nation and the protection of the environment.

78. The adversarial system is, by its nature, rights based. In thequest for justice, it is not uncommon to postulate a winning side and alosing side. In matters of the environment and development however,there is no trade-off between the two.The protection of the environmentis an inherent component of development and growth. Professor CharlesE Corker of the University of Washington School of Law said in a speechtitled “Litigating the Environment – are we overdoing it?”[21]:

“My answer is yes. We are overdoing our litigation of theenvironment. I do not mean that there are necessarily too manylawsuits being filed on environmental issues, and that we shouldsomehow cut back – I would not know how, in any case – thenumber of those suits by ten percent, twenty percent, or fiftypercent. I do mean that a disproportionately large share of attention,effort and environmental concern is being focused on lawsuits.Lawsuits cannot accomplish, by themselves, solutions to the mostpressing of our environmental problems. As a result, we are insome danger of leaving the most pressing environmental problemsunsolved –or even made worse – because the commotion oflitigation has persuaded us that something has been accomplished.”

Professor Corker draws attention to the idea that the environmentalprotection goes beyond lawsuits. Where the state and statutory bodiesfail in their duty to comply with the regulatory framework for the protectionof the environment, the courts, acting on actions brought by public spiritedindividuals are called to invalidate such actions. Equally importanthowever, is to be cautious that environmental litigation alone is not thepanacea in the quest to ensure sustainable development.

79. The protection of the environment is premised not only on theactive role of courts, but also on robust institutional frameworks withinwhich every stakeholder complies with its duty to ensure sustainabledevelopment. A framework of environmental governance committed tothe rule of law requires a regime which has effective, accountable andtransparent institutions. Equally important is responsive, inclusive,participatory and representative decision making. Environmentalgovernance is founded on the rule of law and emerges from the valuesof our Constitution. Where the health of the environment is key topreserving the right to life as a constitutionally recognized value under 21 Speech to the Thirteenth Annual Meeting of the Interstate Conference on WaterProblems, Portland, Oregon delivered on 29 October, 1970.

AB

C

D

E

F

G

H

AArticle 21 of the Constitution, proper structures for environmental decisionmaking find expression in the guarantee against arbitrary action and theaffirmative duty of fair treatment under Article 14 of the Constitution.Sustainable development is premised not merely on the redressal of thefailure of democratic institutions in the protection of the environment,but ensuring that such failures do not take place.

B

80. In the present case, as our analysis has indicated, there hasbeen a failure of due process commencing from issuance of the ToRand leading to the grant of the EC for the PRR project. The appellant, asproject proponent sought to rely on an expired ToR and proceeded toprepare the final EIA report on the basis of outdated primary data. AtCthe same time, the process leading to the grant of the EC was repletewith contradictions on the existence of forest land to be diverted for theproject as well as the number of trees required to be felled.

81. The SEAC, as an expert body abdicated its role and functionby relying solely on the responses submitted to it by the appellant andDfailing to comply with its obligations under the OMs issued by the MoEF-CC from time to time.In failing to provide adequate reasons for itsrecommendation to the SEIAA for the grant of an EC, it failed in itsfundamental duty of ensuring both the application of mind to the materialspresented to it as well as the furnishing of reasons which it is mandatedEto do under the 2006 Notification.

82. In this view of the matter, neither the process of decisionmaking nor the decision itself can pass legal muster. Equally, this Courtmust bear in mind the need to balance the development of infrastructureand the environment. We are of the view that while the need for a roadFproject is factored into the decision-making calculus, equal emphasisshould be placed on the prevailing state of the environment. The appealwhich was filed before the NGT in 2015, was finally disposed of at abelated stage only in 2019.

J DirectionsG83. Bearing in mind the need to bring about a requisite balance,we propose to issue the following directions under Article 142 of theConstitution:

(i) The appellant is directed to conduct a fresh rapid EIA forthe proposed PRR project; H

(ii) The appellant shall, for the purpose of conducting the rapidAEIA, hire a sector-specific accredited EIA consultant;

(iii) The appellant shall have due regard to the variousdeficiencies noted in the present judgment as well as ensurethat additional precautions are taken to account for theprevailing state of the environment; B

(iv) The appellant shall ensure that the requisite clearances undervarious enactments have been obtained and submitted tothe SEAC prior to the consideration by it of the informationsubmitted by the appellant in accordance with the OMsissued by the MoEF-CC from time to time; C

(v) The SEAC shall thereafter assess the rapid EIA report andother information submitted to it by the appellant inaccordance with the role assigned to it under the 2006Notification. If it is of the opinion that the appellant hascomplied with the 2006 Notification as well as the directionsissued by this Court, only then shall it recommend to theSEIAA the grant of EC for the proposed project. The SEACand the SEIAA would lay down appropriate conditionsconcerning air, water, noise, land, biological and socioeconomic environment and other conditions it deems fit;and D

E

(vi) The appellant shall consult the requisite authority to ensurethat no potential damage is caused by the project to thepetroleum pipelines over which the proposed road may beconstructed.

F

84. In moulding the above directions, this Court has factored intoits decision-making calculus the fact that the appeal from the judgmentof the NGT was filed by the project proponent and no appeal was filedby the respondents. The order of the NGT directing the appellant toconduct a rapid EIA is upheld, though for the reasons which we haveindicated above. We clarify that no other Court or Tribunal shall entertainany challenge to the ultimate decision of the SEAC or the SEIAA. Libertyis granted to the parties to approach this Court upon any grievance fromthe decision of the SEAC or the SEIAA pursuant to the order of thisCourt.

G

H

812SUPREME COURT REPORTS[2020] 5 S.C.R.

A85. The appeal is disposed of in the above terms. There shall beno order as to costs.

Pending application(s), if any, shall stand disposed of.

BAnkit Gyan

Appeal disposed of.

C

D

E

F

G

H