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BEFORE THE NATIONAL GREEN TRIBUNAL

NEW DELHI,

(PRINCIPAL BENCH)

APPLICATION No. 28 of 2011

&

APPLICATION No. 9 of 2012

1. Mayur Karsanbhai Parmar

Post Kaj, Taluka Kodinar

District Junagadh

Gujarat.

2. Ranjitsinh Udaysinh Parmar

Post Kaj, Taluka Kodinar

Dist, Junagadh

Gujarat.

Applicant/Petitioner

Versus

1. Union of India

Ministry of Environment & Forests

Paryavaran Bhavan, CGO Complex

Lodhi Road, New Delhi-110003.

2. Member Secretary

Mr. Hardik Shah or his Successor

Gujarat Pollution Control Board

Pariyavaran Bhavan, Sector 10-A

Gandhinagar-382010

Gujarat.

3. Collector

District Junagadh

Limda Chowk, Collector Office

Junagadh, Gujarat.

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4. Shapoorji Paloonji & Company Ltd.

AFCONS Infrastructure Ltd.

Forbes Gokak Ltd Consortium

Notice through an Authorised Person

SP Centre

41/44,Minoo Desai Marg

Colaba, Mumbai 400 005.

OR

At Shivalaya Complex

Chhara Zanpa,Kodinar

District Junagadh, Gujarat.

Respondents

Counsel for Appllent:

Shri Anand Grover, Sr. Advocate

Shri Abhimanue Shreshtha, Advocate.

Shri Sridevi Panikkar, Advocate

Counsel for Respondents:

Ms. Neelam Rathore, Advocate for R.1

Ms. Hemantika Wahi, Advocate and

Shri Satyabrata Panda, Advocate for R-2 & 3

Shri C.A. Sundram, Sr. Advocate &

Ms. Rohini Musa, Advocate for R-4

JUDGMENT

PRESENT:

Justice A.S. Naidu (Acting Chairperson)

Prof. R. Nagendran (Expert Member)

................................................................................................... Dated 20th April, 2012

………….……………………………………………………………

JUDGMENT BY THE BENCH

1. Both the aforesaid applications have been filed by the

same Applicants, seeking more or less identical reliefs. In

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Application No. 28/2011, apprehending, likelihood of being

affected by the proposed Greenfield Port (Seema Port) going

to be established at Sea Coast of Village Chhara, the

Applicants invoked the jurisdiction of this Tribunal under

Section 18 (1) & (2) read with Section 14 of the National

Green Tribunal Act, 2010 inter alia praying as follows:-

“a) The proceedings of Public Hearing dated 19.11.2010

conducted for the proposed Green Field Port be

quashed.

b) The Ministry of Environment and Forest be directed to

reject the Application for the proposed projects

outrightly according to the Section 8 of the

Environment Impact Assessment Notification (EIA) ,

2006, as the same is filed concealing the relevant facts

and misrepresenting the facts in the EIA Report,

c) The Respondent No.4 be directed to file a composite

Environment Impact Assessment report for the Green

Field Port and the Proposed Thermal Power Project.

d) During the pendency and/or final disposal of the

present petition, be pleased to stay further proceedings

in connection with the environmental clearance with

regard to proposed Green Field Port at Chhara, Taluka

Kodinar, District Jundgadh and the Thermal Power

Project at Kaj, Taluka Kodinar, District Junagadh of the

respondent project proponent

e) To award the costs of this application.

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f) To pass such other and further order/s in the interest of

justice be granted.

2. The same Applicants apprehending to be affected by

the Thermal Power Plant proposed to be installed by

Respondent No. 4 (Shapoorji Paloonji & Company Ltd.),

have preferred Application No. 9/2012 once again invoking

jurisdiction under Section 18 (1)&(2) read with Section 14 of

the NGT Act, 2010, Seeking following reliefs:-

i) “The proceedings of Public Hearing dated

15.6.2011 conducted for the Proposed Thermal

Power Project at Village Kaj-Nanavada, Taluka

Kodinar, District Junagarh be quashed.

ii) The Ministry of Environment and Forests be

directed to reject the Application for the proposed

projects outrightly according to the Section 8 of

the Environment Impact Assessment Notification,

2006, as the same is filed concealing the

relevant facts and misrepresenting the facts in

the EIA Report.

iii) During the pendency and/or final disposal of the

present Application be pleased to stay further

proceedings in connection with the

environmental clearance with regard to proposed

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Greenfield Port at Chhara, Taluka Kodinar,

District Junagadh and the Thermal Power Project

at Kaj, Taluka Kodinar, District Junagadh of the

respondent project proponent.

iv) To award the costs of this application.

v) To pass such other and further order/s in the

interest of justice be granted.”

3. According to the Applicants, a Port has been

proposed to be set up to import coal from Indonesia.

The said coal is proposed to be transported by a

conveyer belt to be used in the Thermal Power Plant,

therefore, the said port is to be construed as a captive

port for the Thermal Power Plant.

The submissions of the Applicants are, however,

repudiated by Respondent No. 4. According to the

said Respondent, the above said two projects are not

composite to one another; on the other hand they are

separate and independent projects.

4. In course of hearing it was found that not only

parties in both the cases are same but also the facts

and point of law involved. Therefore, by consent of the

Counsel for the parties both the cases were heard

together and are disposed of by this common

judgment.

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The mute question which needs determination in both

the applications is as to whether the applicant has any

cause of action as on date to approach this Tribunal or

the applications are premature, because no order has

been passed granting EC for either of the projects as

yet and the matter is still under consideration, of the

concerned Statutory Authorities.

5. According to the Applicants, the Environment

Impact Assessment (EIA) reports prepared for both the

projects do not disclose the correct facts and there is

deliberate suppression and of concealment of vital

informations. The same also contain false or

misleading information with respect to material facts.

Further, there has been violation in the process of

public hearing, as prescribed under EIA Notification,

2006 as well as the Office Memorandum dated 19th

April 2010 issued by the MoEF. It is submitted that in

the event EC is granted ignoring aforesaid infirmities,

there would be likelihood of infringement of legal right,

vis-a-vis the environment.

6. On commencement of the hearing, a preliminary

objection was raised by Mr. Sundram, Learned Sr.

Advocate appearing on behalf of Respondent No.4.,

mainly on the ground that the purported Applications

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filed by the petitioner under Section 14 read with

Section 18 of the NGT Act, 2010 are not maintainable

as no decision has been taken nor permission /

clearance has been accorded to establish any of the

projects till date. In short, according to Mr. Sundram

no cause of action has arisen as yet to invoke the

appellate jurisdiction conferred upon this Tribunal

under Section 18 of the NGT Act. Further the

jurisdiction under Section 14 of the NGT Act also

cannot be invoked as the mandatory requirements to

invoke such jurisdiction are not satisfied.

7. To appreciate the arguments it would be prudent

to refer to relevant provisions of Section 16(h) of the

NGT Act, 2010 which reads as follows:-

“Tribunal to have appellate jurisdiction – Any

person aggrieved by –

a) xxxx b) xxxx c) xxxx d) xxxx e) xxxx f) xxxx g) xxxx h) an order made, on or after the commencement

of the National Green Tribunal Act, 2010,

granting environmental clearance in the area in

which any industries, operations or processes

or class of industries, operations and processes

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shall not be carried out or shall be carried out

subject to certain safeguards under the

Environment (Protection) Act, 1986 (29 of 1986).”

8. In the case in hand, M/s. Seema Port Pvt. Ltd.,

the project proponent made an application on 3rd July,

2009 for setting up of a Port at Chhar in the State of

Gujarat. The said application was dealt with in

accordance with the provisions of Act and Rules and a

review was conducted by the Environmental Appraisal

Committee (EAC) on 21st December, 2009. In usual

course of business, Terms of Reference (TOR) were

issued by the MoEF on 22nd January, 2010 and public

hearing was conducted in consonance with the

provisions of EIA Notification 2006, on 19th November,

2010. Thereafter, it appears the Gujarat State Coastal

Zone Management Authority reviewed the project on

27th February, 2012, and the matter now rests at that

stage. In other words the process is still under

progress and no final decision has been taken either

by the Gujarat State Coastal Zone Management

Authority or EAC, or by the MoEF, as on date.

9. So far as the Thermal Power Plant is concerned,

Respondent No.4 M/s S.P. Energy (Gujarat) Pvt. Ltd.

submitted the application in Form-I on 1st February,

2010. The same was reviewed by the EAC on 30th

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April, 2010, TOR were issued by the MoEF on 24th

May, 2010, Public hearing was conducted on 15th

June, 2011 and the matter is now pending before the

MoEF for taking the decision with regard to

Environmental Clearance.

10. It is clear from the narrations made above that,

no decision to grant EC has been taken by the MoEF

till date nor any order as contemplated under Sub-

Section (h) of Section 16 of NGT Act has been passed,

nor has any decision or direction been communicated,

with regard to any of the aforesaid two Projects.

11. Section 16 of the NGT Act, authorizes a person

aggrieved by an order granting environmental

clearance for any project to file an appeal before this

Tribunal within a period of thirty (30) days from the

date on which the order or decision is communicated

to him. In the case in hand, the MoEF admittedly has

not taken any decision with regard to granting EC to

either of the project and as such, the jurisdiction

conferred upon this Tribunal under Section 16 of the

Act cannot be invoked at this stage.

12. Being conscious of the aforesaid Position of law,

Mr. Grover, learned Sr. Advocate appearing in both the

applications submitted that the jurisdiction of this

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Tribunal under Section 14 of the NGT Act, 2010 being

much broader, the two applications should be

construed to be under the said Section. The position

of law is no more resintegra that if a Court has

jurisdiction to grant a relief, nomenclature of the

application shall not stand on its way. In other words,

if this Tribunal has power under Section 14 to grant the

relief sought for there would be no impediment to

proceed with the hearing of the case.

13. To appreciate the power of this Tribunal vested

under Section 14 of the NGT Act, 2010 vis-à-vis the

reliefs sought for in both the cases, it would be prudent

to scan through the provisions of the said Section 14

for the sake of brevity and better understanding.

Section 14 reads as follows:-

“Tribunal to settle disputes –

i) The Tribunal shall have the jurisdiction over all civil

cases where a substantial question relating to

environment (including enforcement of any legal

right relating to environment), is involved and such

question arises out of the implementation of the

enactments specified in Schedule 1.

ii) The Tribunal shall hear the dispute arising from

the questions referred to in sub-section (1) and

settle such disputes and pass order thereon.

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iii) No application for adjudication of dispute under

this section shall be entertained by the Tribunal

unless it is made within a period of six months

from the date on which the cause of action for

such dispute first arose.”

The expression “substantial question” referred

to in Section 14, has been defined under Section

2 (m) of the Act which reads as follows:

(m) “Substantial question relating to

environment”

shall include an instance where:-

(i) There is a direct violation of a specific

statutory environmental obligation by a

person by which:-

(A) The community at large other than an

individual or group of individuals is

affected or likely to be affected by the

environmental consequences; or

(B)The gravity of damage to the

environment or property is substantial;

or

(C) The damage to public health is

broadly measurable;

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(ii) The environmental consequences relate to

a specific activity of a point source of

pollution.”

14. According to Mr. Grover, learned Sr. Advocate,

a combined reading of Section 14 and 2 (m) leads to a

conclusion that violation of any specific Statutory

obligation which has direct access to the cause and

which is likely to affect the community at large can be

raised before this Tribunal invoking jurisdiction under

Section 14 of the Act.

Expanding the said argument Mr. Grover further

submitted that the appellate power of the Tribunal to

exercise jurisdiction under Section 16 (h) being

specific, under the said provision the order granting

environmental clearance can be assailed by a person

aggrieved, On the other hand, the jurisdiction under

Section 14 is much broader and deals with cases

where substantial question relating to the environment,

which arises out of implementation of the enactments

listed in schedule 1 of the Act, are concerned.

15. Referring to the facts of the case, Mr Grover

further submitted that in the case in hand there has

been gross violation of the process of public hearing as

prescribed under EIA Notification, 2006 as well as the

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office memorandum dated 19th April, 2010 issued by

the MOEF. The project proponent, in both the cases,

had not approached the authorities with clean hands,

in as much as, they have concealed material facts and

furnished concocted particulars. There was also gross

violation of the procedure prescribed for conducting the

public hearing. According to Mr. Grover, if the MoEF

on the basis of such improper particulars grants EC,

there is likelihood of direct violation of specific

Environmental obligations, thereby causing, or

likelihood of causing environmental disorders.

16. The submissions made on behalf of the

Applicants are strongly repudiated by Mr. Sundram

Learned Sr. Advocate appearing for R-4. According to

Mr. Sundram, in order to invoke jurisdiction under

Section 16, this Tribunal has to be satisfied that the

relief sought for involves an issue that would fall within

the realm of being a civil case, i.e., where a legal right

is accrued and a corresponding legal obligation is

anticipated. Further, the said Civil issue should involve

a substantial question relating to environment and

such questions should arise out of the implementation

of the enactments specified in Schedule (I) to the Act.

‘’Substantial question related to environment”, as

defined under Section 2 (m) of the Act, means and

connotes the environmental consequences relating to

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an activity or point of source of pollution. It is, further

submitted that a mechanism having been established

in terms of the Statute, under the EIA Notification,

2006, consisting of competent Authorities, who are

empowered to look into every aspect, conduct studies

and assess the impact, culminating in grant of

environment clearance by the MoEF, seeking relief

from this Tribunal at this stage is rather premature and

it is a fit case where both the Appeals should be

dismissed in limini, on that ground itself.

17. Heard Learned Counsel for the parties diligently

and perused the relevant documents annexed to the

pleadings meticulously. There is no dispute that the

paraphernalia as well as formalities for considering as

to whether E.C. should be granted to both the projects

or not, are still in process and till date the MoEF has

neither taken any decision nor passed any order.

18. The Environment Protection Act is a self-

contained legislature. In consonance with the

provisions of the said Act, and Rules, Notifications are

issued, laying down a full-fledged procedure required

to be adopted for imposing restrictions and prohibitions

on the new project or activities, or on the expansion or

modernisation of existing Projects or activities based

on their potential environmental impacts as indicated in

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the Schedule to the Notification. It is well settled that

unless prior environmental clearance is granted in

accordance with the objectives of National

Environment Policy, no new project can commence.

Environmental Impact Assessment Authority is

constituted by the Central Govt. in consultation with the

State Govt. or Union Territory Administration

concerned under Sub Section (3) of Section 3 of the

Environment (Protection) Act 1986, for conducting the

assessment and impacts.

For the sake of better appreciation, Clause-2 of the

Notification dated 14th September, 2006, is quoted

herein below:-

2.“Requirement of prior Environmental

Clearance (EC):- The following projects or

activities shall require prior environmental

cleanse from the concerned regulatory authority,

which shall hereinafter referred to as the Central

Government in the Ministry of Environment and

Forests for matters falling under Category “A” in

the Schedule and at State level the State

Environment Impact Assessment Authority

(SEIAA) for matters falling under Category “B” in

the said Schedule, before any construction work,

or preparation of land by the project

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management except for securing the land, is

started on the project or activity:

(i) All new projects or activities listed in the

Schedule to this notification.

(ii) Expansion and modernization of existing projects

or activities listed in the Schedule to this

notification with addition of capacity beyond the

limits specified for the concerned sector, that is,

projects or activities which cross the threshold

limits given in the Schedule, after expansion or

modernisation.

(iii) Any change in product-mix in an existing

manufacturing unit included in Schedule beyond

the specified range.

19. As per the provisions of the EIA Notification

approval for the projects culminating in granting of

Environmental Clearance, follow a series of steps as

outlined below:

(a) Submission of Application along with Form 1/Form

1A by the project proponent

(b) Preparation and submission of an Environmental

Impact Assessment Report as per the Terms of

Reference [ToRs] for the project given by the

Expert Appraisal Committee

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(c) Notice by the State Pollution Control Board for a

mandatory Public Hearing to be published in at

least two local newspapers

(d) Access to the Executive Summary and EIA Report

at designated places

(e) Conducting the Public Hearing in a manner which

ensures the widest possible participation of the

affected people.

(f) Detailed Scrutiny of the EIA report and the

proceedings of the Public Consultation by the

Expert Appraisal Committee and the Ministry of

Environment and Forests

(g) Grant of approval or rejection of application by the

Ministry of Environment and Forests, after

consideration of the pros and cons and the impact

or irrevocable harm likely to be caused to the

biodiversity, environment & forests.

20. In the case in hand admittedly, the procedure /

assessment under EIA Notification 2006, read with the

Environment (Protection) Act and Rules for

determining as to whether EC can be granted to the

Project or not is in progress. The Competent

Authorities under the said Notification are required to

conduct scrutiny of the projects, and consider the pros

and cons stage by stage. The persons having interest

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or likely to be effected / aggrieved if the Project is set

up have access to take part and put forward their

grievances. In course of assessment, the Competent

Authorities are authorised to take into consideration

the grievances put forth before them. Elaborate

procedure is also laid down for public consultation and

public hearing in which the inhabitants of the localities

and others who are likely to affected by the projects

have a right to canvas their grievances. The EIA

Notification, 2006, provides a complete and self-

contained machinery to look into the grievances of

persons aggrieved who apprehend and / or likely to be

affected. The Authorities shall also in course of

assessment, work-out the impact of the projects on the

environment, and arrive at such conclusions as would

be just and proper and in consonance with law.

21. There is no allegation that the Competent

Authorities are not following the mandatory

requirements laid down in the EIA Notification, 2006 or

any of the provisions of the Acts and Rules. The only

grievance which is made out before this Tribunal is that

the Project Proponent had suppressed vital facts and

furnished erroneous and concocted materials and that

the public hearing has not been conducted in proper

perspective. But then all these eventualities can be

considered by the Committee consisting of Competent

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Authorities, in course of the assessment process. The

Respondents have also an opportunity, to put forth

their grievance before the Authorities. Therefore, the

allegations levelled by the Applicants, appears to be

more on the basis of surmise and conjecture.

Admittedly, no EC has been accorded to any of the

projects and it is not known whether the same will be

granted or not. Thus, as on date there is no

apprehension or likelihood of any damage being

caused to the environment. That apart, Applicants are

not left remediless. In the event EC is granted by the

Competent Authority the said decision can be assailed

in Appeal.

22. In the aforesaid scenario, as the applications

filed by the Project Proponent (R-4) for granting EC for

the Projects are still under consideration, we feel any

interference by us at this stage, in the midst of decision

making process would amount to pre-judging the

issues. Therefore, we refrain from entering into the

arena of controversy, as the same, according to us,

would be premature.

23. The jurisdiction of Section 14 of the Act, can be

invoked only if the matter in controversy is not under

consideration of any Competent Authority and or by

afflux of time a project is likely to cause harm to the

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environment. None of the aforesaid eventualities are

satisfied in the present case. We are, therefore, not

inclined to entertain these applications and dispose of

the same granting liberty to the Applicants to file

detailed objection before the Expert Appraisal

Committee (EAC) and or before the MoEF as the case

may be. We, further, direct that in the event such

objections are filed by the Applicants, the same should

be considered and only thereafter a decision should be

taken either for granting of Environment Clarence to

the aforesaid two projects or not. We make it clear

that we have not examined the merits of the case nor

considered the submissions as to whether the two

projects are composite to each other or are

independent. The Authorities have the liberty to

decide the said issue also in accordance to law and

materials available.

Both the Appeals are accordingly disposed of,

granting liberty to the Applicants to approach this

Tribunal once again if exigencies arise. Parties shall

bear their own cost.

Prof. R. Nagendran Justice A.S. Naidu Expert Member Acting Chairperson

Durga Malhotra 20

th April, 2012