Supreme Court suspends Environmental Clearance for Goa Airport Project: Hanuman Laxman Aroskar vs. Union of India (29 March 2019)

LEGAL ISSUE: Whether the Environmental Clearance (EC) granted for the development of a greenfield international airport at Mopa, Goa was valid, considering the alleged concealment of material facts and procedural lapses.

CASE TYPE: Environmental Law, Public Interest Litigation

Case Name: Hanuman Laxman Aroskar vs. Union of India

Judgment Date: 29 March 2019

Introduction

Date of the Judgment: 29 March 2019
Citation: Not Available in the source
Judges: Dr Dhananjaya Y Chandrachud, J and Hemant Gupta, J

Can a project proponent conceal the number of trees to be felled for a project and still get an Environmental Clearance? The Supreme Court of India recently addressed this question in the case of Hanuman Laxman Aroskar vs. Union of India. The court examined the validity of an Environmental Clearance granted for the development of a greenfield international airport at Mopa, Goa, focusing on whether there was a proper assessment of environmental impacts and adherence to legal procedures.

The Supreme Court was hearing an appeal against the National Green Tribunal’s (NGT) decision, which had upheld the Environmental Clearance (EC) for the Mopa airport project. The core issue revolved around allegations of material concealments by the project proponent regarding the number of trees to be felled and the presence of ecologically sensitive zones, as well as procedural lapses in the environmental impact assessment process.

The judgment was authored by Justice Dr Dhananjaya Y Chandrachud, with Justice Hemant Gupta concurring.

Case Background

The case concerns the development of a greenfield international airport at Mopa in Goa. The existing airport at Dabolim was deemed insufficient for the growing air traffic, prompting the state government to initiate plans for a new airport in 1997. Several studies and reports were commissioned, including those by Engineers and Management Associates, Spain (1997), Airports Authority of India (1998), and the International Civil Aviation Organisation (2005, 2007).

In 2000, the Government of India approved the setting up of the airport at Mopa and initially planned to close the Dabolim airport for civilian operations. This decision was later modified in 2010 to allow continued civilian operations at Dabolim. Land acquisition for the Mopa project began in 2008, with the project area reduced from 4,500 acres to 2,271 acres during appraisals.

The Ministry of Environment and Forests (MoEF), now MoEFCC, issued a notification in 2006 mandating prior Environmental Clearance (EC) for Category ‘A’ projects, which include airports. The process involves scoping, public consultation, and appraisal. In March 2011, the State of Goa, as the project proponent, submitted Form 1 to the MoEF, followed by an application for Terms of Reference (ToR). The ToR was finalized in May 2011, and the MoEF issued the ToR for the Environmental Impact Assessment (EIA) report.

A tender for the project was floated in October 2014, and a public hearing was conducted in February 2015. The Expert Appraisal Committee (EAC) recommended an extension of the ToR validity. In May 2015, the State of Goa submitted the final EIA report seeking EC. The EAC sought additional information in June 2015. The Federation of Rainbow Warriors submitted a representation, leading to further clarifications. Finally, in October 2015, the EAC recommended the grant of EC, which was approved by the MoEFCC on 28 October 2015.

Following the grant of the EC, GMR Goa International Airport Limited (GGIAL) was awarded the contract in August 2016. A concession agreement was executed in November 2016, and construction commenced in September 2017, with a target completion date of September 2020.

The grant of the EC was challenged before the NGT by the Federation of Rainbow Warriors and Hanuman Laxman Aroskar. The NGT initially restrained the felling of trees in November 2017, but later modified this order. The Deputy Conservator of Forests granted permission for felling 21,703 trees in February 2018, which was set aside by the Bombay High Court. The High Court ordered a fresh enumeration of trees. Eventually, 54,676 trees were enumerated. The High Court directed the State of Goa to seek permission from the NGT for felling the trees. The NGT upheld the EC in August 2018, imposing additional safeguards. This decision was appealed before the Supreme Court.

Timeline

Course of Proceedings

The grant of the EC was initially challenged before the Western Zonal Bench of the NGT by the Federation of Rainbow Warriors and Hanuman Laxman Aroskar. These appeals were subsequently renumbered before the Principal Bench of the NGT at New Delhi. The NGT issued an interim order restraining the cutting of trees, which was later modified. The Bombay High Court also intervened, setting aside the permission for tree felling and ordering a fresh enumeration. The High Court directed the State of Goa to seek permission from the NGT for felling the trees. The NGT ultimately upheld the EC, imposing additional conditions. Aggrieved by the NGT’s decision, the appellants approached the Supreme Court.

Legal Framework

The judgment refers to the Constitution (Forty-second Amendment) Act 1976, which added Article 48A, mandating the state to protect the environment, and Article 51A(g), placing a duty on citizens to protect the environment. The Environment Protection Act 1986 was enacted to protect and improve the environment.

The judgment discusses the 2006 notification issued by the MoEF under the Environment (Protection) Act 1986, which mandates prior Environmental Clearance (EC) for specified projects. This notification categorizes projects into ‘A’ and ‘B,’ with ‘A’ projects requiring clearance from the Central Government and ‘B’ projects from State Level Environment Impact Assessment Authority (SEIAA). The process involves screening, scoping, public consultation, and appraisal.

The judgment also references the Indian Forest Act 1927, particularly Section 20, which deals with the declaration of reserved forests. The Forest Conservation Act 1980 requires prior permission for the use of forest land for non-forest purposes.

The National Green Tribunal Act 2010, specifically Section 16(h), provides an appellate remedy against the order granting EC. Section 20 mandates the NGT to apply the principles of sustainable development, the precautionary principle, and the polluter pays principle.

Arguments

The appellants argued that the project proponent concealed the fact that 54,676 trees would be felled, while Form 1 and the EIA report stated that only a few trees would be cleared. They also contended that the project proponent failed to disclose the presence of Ecologically Sensitive Zones (ESZs) in Maharashtra, which fell within the study area.

Further, the appellants submitted that the EIA report did not include sampling points in Maharashtra, despite the state comprising nearly 40% of the study area. They also argued that the EIA report was deficient in failing to notice wildlife in the surrounding forests and that no proper avi-faunal study was done.

The appellants also raised concerns about the public consultation process, stating that the project proponent misrepresented the objections raised during the public hearing before the EAC. They argued that the EAC failed to appraise the environmental consequences of the project and that the NGT did not conduct a merits review of the case.

The respondents, including the MoEFCC, the State of Goa, and the concessionaire, argued that the EIA report adequately addressed environmental concerns. They contended that the term “reserved forest” refers only to areas notified under Section 20 of the Indian Forest Act 1927, and that no such forests existed within the 15 km radius in Maharashtra. They also submitted that the EIA report considered the forest cover in the study area, and that the sampling points, though located in Goa, covered the entire study area. They also stated that the project was in the larger public interest and that objections were primarily based on procedural defects.

The respondents also highlighted that the project had been in the planning stages for two decades, and that the existing airport at Dabolim was saturated. They emphasized the economic benefits of the new airport and the fact that the project was being developed with all necessary approvals.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues. However, the core issues that the Court addressed were:

1. Whether the project proponent had made a full and candid disclosure of all aspects bearing upon the environment in the area of study, as required by Form 1 under the 2006 notification.
2. Whether the EIA report adequately addressed the presence of forests and ecologically sensitive zones within the study area.
3. Whether the Expert Appraisal Committee (EAC) had properly appraised the environmental consequences of the project.
4. Whether the NGT had conducted a merits review of the case.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court held that the project proponent had failed to make a full and candid disclosure of all aspects bearing upon the environment in the area of study, as required by Form 1 under the 2006 notification. The Court noted that the project proponent did not disclose the number of trees to be felled and the presence of ESZs.

The Court also found that the EIA report was deficient, failing to acknowledge the presence of ESZs within the study area and misrepresenting the number of trees to be felled. The Court criticized the EAC for not providing cogent reasons for its recommendation and for considering extraneous factors. Additionally, the Court held that the NGT did not conduct a merits review and merely relied on the EAC’s recommendations.

How each authority was viewed by the Court?

The Court’s view of each authority is as follows:

• T.N. Godavarman Thirumulpad v. Union of India [(1997) 2 SCC 267]: The Court relied on this case to emphasize that the term ‘forest’ must be understood according to its dictionary meaning, covering all statutorily recognized forests, whether designated as reserved, protected, or otherwise.
• Construction of Park at Noida near Okhla Bird Sanctuary Anand Arya v. Union of India [2011(1) SCC 744]: The Court distinguished this case, noting that the term ‘forest’ must be construed contextually and should not be applied indiscriminately.
• Utkarsh Mandal v. Union of India [(2009) SCC Online Del 3836]: The Court followed this case to emphasize that the EAC must indicate in its decision that objections and responses were considered and provide reasons for acceptance or rejection.
• Save Mon Region Federation v. Union of India [2013 (1) All India NGT Reporter 1]: The Court followed this case to emphasize that the NGT has the authority to take an appropriate decision on the facts placed before it and set aside or suspend the EC.
• Shreeranganathan K.P. v. Union of India [2014 ALL (I) NGT Reporter (1) (SZ) 1]: The Court followed this case to emphasize that the EAC and SEAC have a duty to apply the principles of Sustainable Development and Precaution while screening, scoping, and appraisal of projects.
• Lafarge Umiam Mining Private Limited v. Union of India [(2011) 7 SCC 338]: The Court distinguished this case, noting that the facts were different and that the present case involved a failure of due process.
• Sir Chunilal v Mehta and Sons, Ltd. v Century Spinning and Manufacturing [1962 Supp. (3) SCR 549]: The Court followed this case to emphasize the test to determine whether a question of law is substantial.

What weighed in the mind of the Court?

The Court was primarily concerned with the failure of due process and the lack of transparency in the grant of the Environmental Clearance (EC). The Court emphasized that the project proponent had a duty to provide accurate and complete information in Form 1, which is the foundation of the EC process. The Court also highlighted the importance of a thorough environmental impact assessment, proper public consultation, and a merits review by the NGT.

The Court was also concerned about the environmental impact of the project, particularly the felling of a large number of trees and the failure to acknowledge the presence of ecologically sensitive zones. The Court emphasized the need to balance development with environmental protection and to ensure that development projects are implemented in a sustainable manner.

The Court underscored the importance of the rule of law in environmental governance, emphasizing that the processes of decision-making are as crucial as the ultimate decision.

Logical Reasoning

Final Order

The Supreme Court set aside the judgment of the National Green Tribunal (NGT) and quashed the Environmental Clearance (EC) granted for the Mopa airport project. The Court directed the project proponent to obtain a fresh Environmental Clearance (EC) by following the due process of law. The Court also directed that the project proponent should disclose the number of trees that are proposed to be felled and the presence of ecologically sensitive zones within the study area.

Dissenting Opinion

There was no dissenting opinion in this case.

Impact

The judgment has significant implications for environmental governance in India. It emphasizes the need for transparency, full disclosure, and proper environmental impact assessments in the grant of Environmental Clearances (ECs). The judgment underscores the importance of due process and the need for expert bodies like the EAC to provide cogent reasons for their recommendations. It also highlights the role of the NGT in conducting a merits review of environmental cases.

The judgment has set a precedent for future cases involving environmental clearances, emphasizing that projects must be developed in a sustainable manner and that environmental concerns must be given due consideration.

Analysis

The Supreme Court’s judgment in Hanuman Laxman Aroskar vs. Union of India is a landmark decision that reinforces the importance of environmental protection and the need for a robust regulatory framework. The Court’s emphasis on transparency, due process, and the need for a thorough environmental impact assessment is crucial for ensuring sustainable development.

The judgment is also significant for its criticism of the Expert Appraisal Committee (EAC) and the National Green Tribunal (NGT). The Court found that the EAC had failed to provide cogent reasons for its recommendation and had considered extraneous factors. The Court also held that the NGT had failed to conduct a merits review and had merely relied on the EAC’s recommendations. This criticism underscores the need for these bodies to exercise their functions diligently and to ensure that environmental concerns are given due consideration.

The judgment has also highlighted the importance of public consultation in the environmental clearance process. The Court noted that the project proponent had failed to appraise the EAC about serious environmental concerns raised during the public consultation. This underscores the need for project proponents to take public concerns seriously and to address them in a transparent and accountable manner.

The judgment has also highlighted the need for project proponents to make a full and candid disclosure of all aspects bearing upon the environment. The Court noted that the project proponent had failed to disclose the number of trees to be felled and the presence of ecologically sensitive zones. This underscores the need for project proponents to be transparent and accountable in their dealings with the environment.

Conclusion

The Supreme Court’s decision in Hanuman Laxman Aroskar vs. Union of India is a significant victory for environmental protection and the rule of law. The Court’s emphasis on transparency, due process, and the need for a thorough environmental impact assessment is crucial for ensuring sustainable development. The judgment has set a precedent for future cases involving environmental clearances and has reinforced the importance of environmental governance in India.

The case serves as a reminder that development projects must be implemented in a sustainable manner and that environmental concerns must be given due consideration. It also underscores the need for regulatory bodies to exercise their functions diligently and to ensure that the environmental clearance process is robust and transparent.