Jan Chetna v. Ministry of Environment & Forests

India

Jurisdiction: India

Side A: Jan Chetna (Individual)

Side B: Ministry of Environment & Forests (Government)

Core objectives: Challenge to application of grant given for development.

Summary

M/s. Scania Steels & Power Ltd. (formerly known as Sidhi Vinayak Sponge Iron Ltd.) was operating a Sponge Iron Plant in Village Punjipatra, Tehsil Gharghoda, District Raigarh in the State of Chhattisgarh, before 2004 i.e. prior to issuance of Environmental Impact Assessment (EIA) Notification, 2006. The production capacity of the said existing unit was 66,000 TPA of Sponge Iron (2 x 100 TPD kilns). In the year, 2008, M/s Scania Steels & Power Ltd. (hereinafter called as Scania for the sake of brevity) applied to the Ministry of Environment and Forest (in short MoEF) for expansion of the existing project. It proposed to enhance the production of Sponge Iron from 66,000 TPA to 1,32,000 TPA by adding another unit or 66,000 TPA, install a Steel Melting Shop (Induction Furnace, 3x15 tons) with CCM facility of 1,35,000 TPA capacity, a Ferro Alloy Plant (5MVA) of 7,5000 TPA and Captive Power Plant of 25 MW, (AFBC 17 MW + WHRB 8 MW). The proposal was considered by the MoEF and environment clearance (in short EC) was granted by letter dated 5th November, 2008 for the proposed expansion. Jan Chetna (Appellant No.1) claiming to be a social and environmental group formed with the objective of working for the welfare of the local communities and creating awareness on social and environmental issues, represented through one or its Member Shri Ramesh Agrawal, and Shri Rajesh Tripathi claiming to be a Project affected person, having agriculture land adjacent to the project site and also claiming to be a social activist and a member of Jan Chetna, assailed the order dated 5th November, 2008, passed by the Ministry of Environment and Forests (MoEF) granting EC for expansion of the project in question before the then National Environment Appellate Authority (NEAA). The NEAA dismissed the Appeal. The said order was assailed by the present Appellant before the High Court of Delhi in WPC No.11157 of 2009, which set aside the order passed by NEAA and directed the said Authority to dispose of the Appeal on merits, as expeditiously as possible. While NEAA was in session of the case, The NGT Act was promulgated and in consonance with the provisions of the said Act, the Appeal stood transferred to this Tribunal. The learned judges heard the counsel for the parties at length; perused the pleadings, documents annexed by the parties and notes of submissions, meticulously; and considered the submissions of all the Learned Counsel diligently. The controversies involved in this Appeal are as follows:- i) Whether the Appellants have locus-standi to prefer the Appeal and assail the EC granted in favour of M/s. Scania Steels & Power Ltd. (Respondent No. 3)? ii) Whether the proposal submitted to enhance the production of existing Sponge Iron Unit from 66,000 TPA to further 66,000 TPA by installing a new unit, setting up a Steel Melting Shop with CCM facility of 1,35,000 TPA capacity, a Ferro Alloy Plant of 7,500 TPA and Captive Power Plant of 25 MW, would amount to expansion of the existing Sponge Iron Plant of 66,000 TPA established prior to 2004 or amounts to installing new projects? iii) As to whether the proposal satisfies the requirement of Clause-7(ii) of EIA Notification, 2006 and Public Hearing / consultation can be exempted? iv) Whether the Authorities have duly applied their mind to the facts and circumstances, the scientific data and other particulars submitted by the Project Proponent, and the decision taken to grant EC was justified or proper? Before entering into the area of controversy, the learned judges recapitulate the principles relating to Industrial Development vis-à-vis sustainable development. It is now well settled by a series of judgments of the Supreme Court that though the industrial development is of vital importance to the country as it generates foreign exchange and provides employment avenues, it has no right to destroy the ecology, degrade the environment and pose health hazards. In view of the constitutional and statutory provisions (as mentioned in the original judgement), the Court held that "Precautionary Principle" and the "Polluter Pays Principle" are part of the environment law of the country. The expression "aggrieved persons" cannot be considered in a restricted manner. The Tribunal has no hesitation to hold that that the Appellants satisfy the definition of "Person aggrieved" and they have locus-standi to file this Appeal. A cumulative reading of the provisions of EIA Notifications, 2006 in the touch stone of the principles laid down by the Hon'ble Supreme court in different decisions, gives an impression that public consultations as incorporated in 2006 Notification is in recognition and in furtherance of the rights to the environment. Public consultations ordinarily have two components; (i) public hearing at the site or in its close proximity and (ii) to obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity. The wording of Clause 7(ii) is very clear and is bereft of any ambiguity. It stipulates that all applications seeking prior environmental clearance for expansion, with increase in the production capacity beyond the capacity for which Prior Environmental Clearance has been granted under this Notification, or with increase either in lease area or production capacity etc. etc., would attract the exclusion of Public consultation. In the case in hand, the production capacity of an existing Sponge Iron Unit is sought to be enhanced, and its production capacity increased, but then no environmental clearance has been granted to the said existing Sponge Iron Unit, under EIA Notification, 2006, thus the concession not to hold public consultation cannot be extended to the expansion of the existing Sponge Iron Unit. Furthermore, all the proposed units being interlinked and dependent on one another, and as no unit can be established in the absence of the other, the learned judges are of the view that the decision taken to exempt Public Consultation to the entire project under Clause 7(ii) of the EIA Notification, 2006, was not just and proper specially due to significant increase in pollution load and consequential environmental ramifications. Considering the magnitude of the proposed project, they further feel that the public in general should have given an opportunity of putting forth their views with regard to the projects. In view of the infirmities noticed during the course of hearing, the MoEF is directed to develop appropriate mechanism, to check the authenticity of environmental data reported in the EIA/EMP report which would facilitate a more realistic environmental appraisal of project. Steps should also be taken for black listing Consultants found to have reported "cooked data" or "wrong data" and for producing sub-standard EIA/EMP report. Strict reading of Clause 7(ii) of EIA Notification, 2006 clearly provides power to EAC or State Level EAC to decide on due diligence necessary including preparation of EIA and Public Consultations only for those expansion proposals or modernization of existing units, which were accorded prior environmental clearance, under this Notification (EIA Notification, 2006). In the present case, as has been held, neither exemption from Public Consultation is applicable under expansion category nor under modernization pretext as the expansion proposal of M/s Scania Steel and Power Ltd., which is an existing Sponge Iron Plant, was not accorded prior environmental clearance under the EIA Notification, 2006. It also does not satisfy the category of modernization of the existing unit, as a number of new facilities such as Induction Furnace, Ferro Allow Plant and Captive Power Plant have been proposed to be added which would certainly result in additional pollution load in the area. The legislators, while framing Clause 7(ii) of EIA Notification, 2006, might have kept in mind that if Public Consultation has already been done earlier under EIA Notification, 2006 while giving prior EC, the same Public Hearing (in short PH) need not be required again at the time of expansion or modernization of unit. Only because, the authorities have exempted Public Consultation in respect of some other projects, cannot be ground for exempting the same so far as Scania is concerned. Law is well settled that each case has to be determined and decided in consonance with the facts and circumstances relating to the said case and there cannot be a universal decision to either conduct or exempt public hearing while granting EC. In view of the discussions made in the preceding paragraphs, the MoEF is directed to get public consultation (Public Hearing) conducted for the proposed projects at the site or nearby area of the site as per the provisions contained in the EIA Notification, 2006. This direction is necessary in order to achieve the object and purpose of the Notification 31 vis-a-vis the Statute. Till the aforesaid exercise is completed, the EC granted on 5th November, 2008 for the proposed expansion of Integrated Steel Plant and Captive Power Plant at Village Kunjipatra, District Raigarh, Chhattisgarh by M/s. Scania Steel and Power Limited, shall remain suspended. It is needless to say that the MoEF shall take prompt steps for completing the exercise of public consultation (Public Hearing) and curing the deficiency in EIA/EMP, and re-visit the entire project in the light of the observations made by this Tribunal and complete the entire exercise as expeditiously as possible. It is needless to be said that the EC granted would be subject to the decision to be taken by the MoEF after public consultation, and other directions. The Appeal is allowed in part.