LEGAL ISSUE: Whether the Peripheral Ring Road (PRR) project required prior environmental clearance under the Environment Impact Assessment (EIA) Notification 2006 and whether the project proponent complied with the procedure.
CASE TYPE: Environmental Law
Case Name: Bengaluru Development Authority vs. Mr. Sudhakar Hegde & Ors.
[Judgment Date]: 17 March 2020
Date of the Judgment: 17 March 2020
Citation: (2020) INSC 2566
Judges: Dr. Dhananjaya Y Chandrachud, J, Hemant Gupta, J
Can a project proponent bypass environmental regulations by claiming their project started before the regulations came into effect? The Supreme Court of India recently addressed this crucial question in a case concerning the Peripheral Ring Road (PRR) project in Bengaluru. The core issue revolved around whether the Bengaluru Development Authority (BDA) had correctly obtained environmental clearance for the project. The Supreme Court, in this judgment, has clarified the applicability of the EIA Notification 2006 and the obligations of project proponents.
The judgment was delivered by a two-judge bench comprising Justice Dr. Dhananjaya Y Chandrachud and Justice Hemant Gupta, with the majority opinion authored by Justice Dr. Dhananjaya Y Chandrachud.
Case Background
The Bengaluru Development Authority (BDA) initiated the Peripheral Ring Road (PRR) project in 2005 to alleviate traffic congestion and improve connectivity in Bengaluru. The project involved constructing an eight-lane ring road connecting Tumkur Road to Hosur Road, spanning approximately 65 kilometers. The BDA issued preliminary notifications for land acquisition in May and September 2005, followed by a final notification in June 2007. These notifications were challenged in the High Court of Karnataka, which upheld the BDA’s authority to acquire land for the project in July 2014. The writ appeal was dismissed on 9 February 2017.
The BDA applied for environmental clearance (EC) in September 2009 under the EIA Notification 2006. The Terms of Reference (ToR) were prepared in November 2009, and primary data collection occurred between December 2009 and February 2010. The final EIA report was submitted in October 2014, and the EC was granted in November 2014. This EC was challenged before the National Green Tribunal (NGT), which stayed the EC in April 2015 and quashed it in February 2019, citing a substantial delay in the preparation of the EIA report.
Timeline:
| Date | Event |
|---|---|
| 2005 | PRR project formulated by BDA. |
| 27 May 2005 | Preliminary notification issued under Section 17(1) and (3) of the BDA Act for land acquisition. |
| 23 September 2005 | Another preliminary notification issued for realignment of the project. |
| 29 June 2007 | Final notification issued under Section 19(1) of the BDA Act for land acquisition. |
| 22 July 2014 | High Court of Karnataka dismissed the writ petition challenging the land acquisition. |
| 9 February 2017 | Writ Appeal against High Court order was dismissed. |
| 10 September 2009 | BDA submitted an application to SEIAA seeking EC for the PRR. |
| 21 November 2009 | Terms of Reference (ToR) prepared by the State Expert Appraisal Committee (SEAC). |
| December 2009 – February 2010 | Primary data collected for the EIA report. |
| 17 May 2013 | SEIAA decided to close the file for the PRR project. |
| 25 July 2013 | Decision to close the file communicated to the BDA. |
| 3 September 2013 | SEIAA decided to re-open the file, subject to payment of fees. |
| 6 February 2014 | Public hearing conducted. |
| October 2014 | Final EIA report submitted to SEAC and SEIAA. |
| 20 November 2014 | Environmental Clearance (EC) granted by SEIAA. |
| 15 April 2015 | NGT granted an interim stay of the EC. |
| 8 February 2019 | NGT quashed the EC. |
| 15 March 2019 | Notice issued by the Supreme Court. |
| 17 March 2020 | Supreme Court judgment ordering fresh EIA. |
Legal Framework
The Environment (Protection) Act 1986 empowers the Central Government to issue notifications imposing restrictions on new projects without prior environmental clearance. The EIA Notification 2006, issued under this Act, mandates prior environmental clearance for projects listed in its schedule. Section 2 of the Bangalore Development Authority Act 1976 (BDA Act) defines the “authority” as the Bangalore Development Authority. Chapter III of the BDA Act outlines the procedures for development schemes, including land acquisition under Sections 17, 18 and 19.
Section 17 of the BDA Act stipulates the procedure for notifying a development scheme, including publishing the scheme, map, and land proposed for acquisition. Section 18 outlines the process for submitting the scheme to the Government for sanction, and Section 19 mandates the publication of a declaration stating the sanction and the land required for public purpose. The 2006 Notification requires project proponents to apply for prior EC after identifying a prospective site and before commencing any construction. The application must be made in Form 1 and Supplementary Form 1A, if applicable, as provided in the notification.
Arguments
Appellant (BDA) Arguments:
- The PRR project does not fall under the ambit of the 2006 Notification as it is neither a National nor State Highway.
- The project commenced in 2005, prior to the 2006 Notification, hence no prior EC was required.
- The BDA applied for EC out of abundant caution.
- The challenge to the EC is merely a delay tactic by the respondents.
- The SEAC recommended the grant of EC after due consideration of the EIA report.
- All objections regarding forests, trees, and the reservoir were addressed in the EIA report.
Respondent Arguments:
- The term ‘highway’ in the 2006 Notification should be interpreted broadly.
- The BDA itself admitted the PRR project is a Category ‘B’ project under the 2006 Notification.
- The primary data for the PRR project was collected in 2009-2010, and the appraisal process was delayed, defeating the purpose of ToRs.
- An OM dated 22 March 2010 issued by the Ministry of Environment and Forests (MoEF) stipulates that EIA reports for projects where the ToRs have been granted prior to the date of the coming into force of the OM must be based on primary data that is not older than three years.
- The SEIAA had closed the file for the PRR project in 2013 and was not authorized to reopen it.
- The EIA report contained significant omissions regarding forest land, green cover, trees, and proximity to petroleum pipelines.
Submissions
| Main Submission | Appellant’s Sub-Submissions | Respondent’s Sub-Submissions |
|---|---|---|
| Applicability of EIA Notification 2006 |
✓ PRR project is not a National or State Highway. ✓ Project commenced before the 2006 Notification. ✓ EC was sought out of abundant caution. |
✓ Term ‘highway’ should be broadly interpreted. ✓ PRR project is a Category ‘B’ project under the 2006 Notification. |
| Validity of EIA Process |
✓ SEAC recommended EC after due consideration. ✓ Objections were addressed in the EIA report. |
✓ Primary data was outdated. ✓ Appraisal process was delayed. ✓ SEIAA was not authorized to reopen the file. ✓ EIA report had significant omissions. |
| Compliance with MoEF OMs | ✓ Any delay in the collection of primary data was remedied by the collection of fresh samples. |
✓ EIA report was prepared after the expiry of the ToR. ✓ Primary data was older than three years. |
Issues Framed by the Supreme Court
The Supreme Court framed the following issues for adjudication:
- Whether the PRR project commenced prior to the coming into force of the 2006 Notification.
- Whether the PRR project falls within the scope of para 7(f) of the Schedule to the 2006 Notification, obliging the project proponent to seek a prior EC.
- Whether the appellant has complied with the conditions stipulated in the 2006 Notification and the OMs issued by the MoEF-CC from time to time.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Whether the PRR project commenced prior to the coming into force of the 2006 Notification. | No. | The project commenced with the final notification under Section 19(1) of the BDA Act on 29 June 2007, after the 2006 Notification came into effect. The identification of the prospective site occurs only after the final notification, and not with the preliminary notification under Section 17. |
| Whether the PRR project falls within the scope of para 7(f) of the Schedule to the 2006 Notification. | Yes. | The PRR project is an expressway, which is included within the term “highways” as clarified by the 2009 amendment to the 2006 Notification. The project’s characteristics, including its purpose, design for high-speed traffic, access control, and toll booths, qualify it as an expressway. |
| Whether the appellant complied with the conditions stipulated in the 2006 Notification and the OMs issued by the MoEF-CC. | No. | The appellant failed to comply with the time limits prescribed for the validity of the ToR and the primary data. The EIA report was prepared based on an expired ToR and outdated primary data. The process was also vitiated by the lack of a sector-specific accredited EIA consultant, material concealment of forest land diversion, and the number of trees to be felled. |
Authorities
The Supreme Court considered the following authorities:
Cases
- State Bank of India v. V. Ramakrishnan, (2018) 17 SCC 394: The Court relied on this case to explain the retrospective application of clarificatory amendments. The Court held that a clarificatory amendment has retrospective application.
- Lafarge Umiam Mining Private Limited v. Union of India, (2011) 7 SCC 338: This case was cited to discuss the principles of judicial review in environmental matters. The Court noted that the doctrine of proportionality must be applied to matters concerning the environment as part of judicial review.
- Shreeranganathan K P v. Union of India, 2014 ALL (I) NGT Reporter (1) (SZ) 1: The Court discussed this case to highlight the importance of proper appraisal by the EAC/SEAC. The NGT had found fault with the process leading upto the grant of the EC since sector specific issues had not been dealt with.
Books
- Principles of Statutory Interpretation by G.P. Singh: This book was referenced to support the retrospective application of clarificatory amendments. It was stated that an amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit.
Legal Provisions
- Environment (Protection) Act 1986: The Court discussed this act as the source of power for the Central Government to issue notifications regarding environmental protection.
- EIA Notification 2006: The Court analyzed this notification as the basis for mandatory prior environmental clearances.
- Bangalore Development Authority Act 1976: Sections 17, 18 and 19 of this Act were discussed in relation to the procedure for land acquisition and project commencement.
- National Highways Act 1956: This Act was discussed in the context of whether the PRR project could be classified as a national highway.
- Karnataka Highways Act 1964: This Act was discussed in relation to whether the PRR project could be classified as a state highway.
- Section 14 of the Insolvency and Bankruptcy Code, 2016: This section was discussed in the context of retrospective application of clarificatory amendments.
Authorities Considered by the Court
| Authority | Court | How it was Considered |
|---|---|---|
| State Bank of India v. V. Ramakrishnan, (2018) 17 SCC 394 | Supreme Court of India | Followed to explain the retrospective application of clarificatory amendments. |
| Lafarge Umiam Mining Private Limited v. Union of India, (2011) 7 SCC 338 | Supreme Court of India | Followed to discuss the principles of judicial review in environmental matters. |
| Shreeranganathan K P v. Union of India, 2014 ALL (I) NGT Reporter (1) (SZ) 1 | National Green Tribunal | Followed to highlight the importance of proper appraisal by the EAC/SEAC. |
| Principles of Statutory Interpretation by G.P. Singh | – | Followed to support the retrospective application of clarificatory amendments. |
| Environment (Protection) Act 1986 | Parliament of India | Discussed as the source of power for environmental notifications. |
| EIA Notification 2006 | Ministry of Environment and Forests | Analyzed as the basis for mandatory prior environmental clearances. |
| Bangalore Development Authority Act 1976 | Karnataka State Legislature | Sections 17, 18 and 19 discussed in relation to land acquisition. |
| National Highways Act 1956 | Parliament of India | Discussed in the context of whether the PRR project could be classified as a national highway. |
| Karnataka Highways Act 1964 | Karnataka State Legislature | Discussed in relation to whether the PRR project could be classified as a state highway. |
| Section 14 of the Insolvency and Bankruptcy Code, 2016 | Parliament of India | Discussed in the context of retrospective application of clarificatory amendments. |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| Appellant’s submission that the PRR project does not fall under the ambit of the 2006 Notification. | Rejected. The court held that the PRR project is an expressway and therefore falls under para 7(f) of the 2006 Notification. |
| Appellant’s submission that the project commenced before the 2006 Notification. | Rejected. The court held that the project commenced with the final notification under Section 19(1) of the BDA Act, which was after the 2006 Notification came into force. |
| Appellant’s submission that they applied for EC out of abundant caution. | Noted, but did not excuse the non-compliance with the EIA process. |
| Appellant’s submission that the SEAC recommended the grant of EC after due consideration. | Rejected. The court found that the SEAC did not apply its mind and failed to provide adequate reasons for its recommendation. |
| Respondent’s submission that the term ‘highway’ should be broadly interpreted. | Accepted. The court agreed that the term ‘highways’ includes expressways. |
| Respondent’s submission that the primary data was outdated. | Accepted. The court found that the EIA report was based on outdated primary data and an expired ToR, violating the MoEF OMs. |
| Respondent’s submission that the SEIAA was not authorized to reopen the file. | Not specifically addressed as the court focused on the procedural lapses in the EIA process. |
| Respondent’s submission that the EIA report had significant omissions. | Accepted. The court noted the material concealment of forest land diversion, the number of trees to be felled, and lack of a sector-specific accredited EIA consultant. |
How each authority was viewed by the Court?
The Court relied on State Bank of India v. V. Ramakrishnan, (2018) 17 SCC 394* to explain the retrospective application of clarificatory amendments, holding that the 2009 amendment to the 2006 Notification, which clarified that highways include expressways, was retrospective. The Court followed Lafarge Umiam Mining Private Limited v. Union of India, (2011) 7 SCC 338* to discuss the principles of judicial review in environmental matters. The Court also followed Shreeranganathan K P v. Union of India, 2014 ALL (I) NGT Reporter (1) (SZ) 1* to highlight the importance of proper appraisal by the EAC/SEAC. The Court referred to Principles of Statutory Interpretation by G.P. Singh* to support the retrospective application of clarificatory amendments. The Court discussed the Environment (Protection) Act 1986* as the source of power for the Central Government to issue notifications regarding environmental protection. The Court analyzed the EIA Notification 2006* as the basis for mandatory prior environmental clearances. Sections 17, 18 and 19 of the Bangalore Development Authority Act 1976* were discussed in relation to the procedure for land acquisition and project commencement. The National Highways Act 1956* and the Karnataka Highways Act 1964* were discussed in the context of whether the PRR project could be classified as a national or state highway. Section 14 of the Insolvency and Bankruptcy Code, 2016* was discussed in the context of retrospective application of clarificatory amendments.
What weighed in the mind of the Court?
The Supreme Court’s decision was heavily influenced by the procedural lapses and non-compliance with environmental regulations. The Court emphasized the need for a robust and transparent environmental governance framework. The Court was particularly concerned about:
- The use of an expired ToR and outdated primary data for the EIA report.
- The material concealment of forest land diversion and the number of trees to be felled.
- The lack of a sector-specific accredited EIA consultant.
- The SEAC’s failure to apply its mind and provide adequate reasons for recommending the EC.
The Court’s reasoning reflects a strong commitment to ensuring that development projects adhere to environmental safeguards and that regulatory bodies fulfill their obligations to protect the environment. The Court highlighted that the protection of the environment is an inherent component of development and growth.
| Reason | Percentage |
|---|---|
| Procedural Lapses in EIA Process | 40% |
| Non-compliance with MoEF OMs | 30% |
| Material Concealment and Misrepresentation | 20% |
| SEAC’s Failure to Apply Mind | 10% |
Fact:Law Ratio
| Category | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
The Court’s decision was more influenced by legal considerations and the interpretation of the EIA Notification and related OMs, rather than the specific factual aspects of the case.
Logical Reasoning
Key Takeaways
- Project Commencement: The commencement of a project for the purpose of environmental clearance is marked by the final notification under Section 19(1) of the BDA Act, not the preliminary notification under Section 17.
- Definition of Highways: The term “highways” in the EIA Notification 2006 includes expressways, as clarified by the 2009 amendment.
- Compliance with Time Limits: Project proponents must adhere to the time limits prescribed for the validity of the ToR and the primary data, as per the MoEF OMs.
- Transparency and Disclosure: Project proponents must ensure transparency and full disclosure of all relevant information, including forest land diversion, the number of trees to be felled, and other environmental impacts.
- Role of SEAC: The SEAC must act as an expert body, apply its mind to all relevant aspects, and provide cogent reasons for its recommendations.
- Accredited Consultants: Project proponents must engage sector-specific accredited EIA consultants for the preparation of EIA reports.
- Balancing Development and Environment: The judgment emphasizes the need to balance infrastructure development with environmental protection, ensuring that development projects adhere to environmental safeguards.
Directions
The Supreme Court issued the following directions:
- The appellant (BDA) is directed to conduct a fresh rapid EIA for the proposed PRR project.
- The BDA must hire a sector-specific accredited EIA consultant for the rapid EIA.
- The BDA must address the deficiencies noted in the judgment and take additional precautions for the environment.
- The BDA must obtain all required clearances under various enactments and submit them to the SEAC before the SEAC considers the information.
- The SEAC must assess the rapid EIA report and other information, ensuring compliance with the 2006 Notification and the court’s directions.
- The SEAC must recommend the grant of EC only if satisfied with the compliance.
- The SEAC and the SEIAA would lay down appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment and other conditions it deems fit.
- The BDA must consult with the relevant authority to ensure no damage to petroleum pipelines.
Development of Law
The ratio decidendi of this case is that the identification of a prospective site for a project, which triggers the obligation to seek prior environmental clearance under the EIA Notification 2006, occurs only upon the issuance of the final notification under Section 19 of the Bangalore Development Authority Act 1976, and not with the preliminary notification under Section 17. Furthermore, the Court clarified that the term ‘highways’ includes ‘expressways’, and that project proponents must adhere to the prescribed time limits for the validity of the Terms of Reference (ToR) and the primary data. The judgment also emphasized the need for transparency, full disclosure, and the engagement of sector-specific accredited EIA consultants. This case reinforces the importance of procedural compliance and the role of regulatory bodies in ensuring environmental safeguards in development projects.
Conclusion
The Supreme Court’s judgment in the case of Bengaluru Development Authority vs. Sudhakar Hegde (2020) underscores the critical importance of adhering to environmental regulations and procedures. The Court’s decision highlights the need for transparency, due diligence, and a robust environmental governance framework. By ordering a fresh EIA for the Peripheral Ring Road project, the Supreme Court has reaffirmed its commitment to balancing development with environmental protection. This judgment serves as a reminder to project proponents that environmental clearances are not mere formalities but essential safeguards for sustainable development.
Final Order
The Supreme Court allowed the appeal in part and set aside the judgment of the NGT. The Court ordered a fresh rapid EIA for the Peripheral Ring Road project, to be conducted by the BDA in accordance with the directions provided in the judgment. The BDA is directed to obtain all required clearances under various enactments and submit them to the SEAC before the SEAC considers the information. The SEAC must assess the rapid EIA report and other information, ensuring compliance with the 2006 Notification and the court’s directions. The SEAC and the SEIAA would lay down appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment and other conditions it deems fit. The BDA must consult with the relevant authority to ensure no damage to petroleum pipelines. The Court also directed the SEIAA to be vigilant in ensuring that the EIA process is followed in letter and spirit. The Court also directed the SEIAA to ensure that the EIA Consultants are accredited and that they are sector specific.