In a significant decision in the matter of M.P Patil Versus Union of India and ors (Appeal No 12 of 12), the Principal Bench of the National Green Tribunal (NGT) on 13-3-2014 suspended the Environmental Clearance granted by the Ministry of Environment and Forest on 25-1-2012 for setting up the 3x 800 MW Super Thermal Power Plant in Bijapur and directed that the Environmental Clearance be reappraised and a fresh decision be taken as to whether the project should be granted Environmental Clearance or not.
The Environmental Clearance was challenged by Appellant M.P Patil, President ofParisara Raksana Seva Vedike before the National Green Tribunal on several grounds which included wrong declaration with respect of the nature of land, R&R Plan not prepared and shared with the public, no proper EIA prepared and specifically no study on the Ambient Air Quality (AAQ)
Delivering the Judgment, the Bench headed by Justice Swatanter Kumar which comprised of Justice U.D Salvi, Prof A.R Yusuf, Dr Trivedi and Dr G.K Pandey concluded that the Environmental Clearance was granted based on wrong declaration with respect to the nature of land i.e agricultural land with double crops were shown as barren and rocky land. In addition it concluded that the EIA report was faulty since no proper study was done on the impact due to
NGT DIRECTIONS :
The NGT passed the following main direction:
· The order dated 25th January, 2012 is hereby remanded to the MoEF to pass an order granting or declining environmental clearance to the project proponent afresh in accordance with law and this judgment. Till then, the said order shall be kept in abeyance.
· The EAC shall visit the site in question, give public notice and hear the project-affected or displaced persons individually or in a representative capacity and then proceed to record its findings.
· The EAC may impose such additional conditions to the order dated 25th January, 2012, as it may deem fit and proper, unless the EAC comes to the conclusion that the project ought not to be granted EC.
IMPORTANT FINDINGS AND OBSERVATIONS:
The NGT in its judgment held :
‘A perusal of the satellite imagery appended by the EIA Consultant to the EIA Report on record does not support the contention of the NTPC that the major part of the project area is barren. Further the revenue documents as well as the photographs of the area placed on record by the Appellant clearly indicate that the area under reference is mostly agricultural land. Hence the plea taken by the NTPC for seeking EC for the project, i.e., “most of the area is barren” clearly indicates that the NTPC misled the EAC’ [Para 38]
39. From the above discussion, it can safely be concluded that the land in question is primarily not barren and rocky land, as informed by NTPC and there appears to be improper disclosure of facts on the part of the NTPC which remained unverified even till the stage of issuance of the EC. [Para 39]
The NGT held that the Public hearing and Environmental Clearance was granted without preparation of the Resettlement and Rehabilitation (R&R) plan which was required. The NGT held that
“…..R & R is an essential feature of any project which comes up for consideration before the competent authorities in accordance with the EIA Notification.
….It is, therefore, evident that the NTPC did not submit the R&R Plan as was required before EAC/MoEF at the time of appraisal of project and rather it was submitted about 5-6 months after the EC was accorded by MoEF which is clearly in violation of TOR conditions.
Submission of such scheme, despite being so significant, had not been submitted by NTPC even after passing of the order of EC. [Para 44]
A perusal of the documents placed on record by the NTPC leads one to observe that in the case of the Kudgi STPP, the NTPC R&R policy seems to be restricted to paper only and the ground reality is that the NTPC has not even bothered to prepare the list of project-affected persons although about two years have passed from the date of issuance of Land Acquisition notice [Para 54]
LOCATION OF AAQ MONITORING STATIONS:
The downwind monitoring station would have given the actual prevailing AAQ level with respect to particulate matter, sulphur-di-oxide and oxides of nitrogen near human settlements. The data would have been helpful in providing the prevailing background pollution levels in the area, which is important to see the actual impact on the AAQ after the thermal power plant is in operation. Thus, the requirement of TOR has not been met by NTPC for reasons best known to it.
On Public Consultation Process:
The NGT held that:
“an appropriate R&R scheme was not available at the time of the public hearing. Also, the other objections raised at the public hearing were not properly answered during the public hearing. The Committee concluded that major issues had been noticed but it is evident that the nature and category of the land, location of monitoring stations, shifting of coal and deficiencies in the R&R plan were not dealt with in consonance with the TOR. The R&R plan, which was to be prepared within four months, in fact, had not been placed before the competent authorities at the time of consideration or even after the grant of the EC”
Onus/ Burden of Proof in environmental cases:
Onus is not on the objectors to prove their objections by leading scientific evidence at that stage. It is the duty of the EAC to examine the worth of the objections raised and the consequences thereof. It was, in fact, for the NTPC to show that the various apprehensions of the objectors were not well-founded, and that the project is not likely to do any environmental damage or cause deprivation of the livelihood and income of the project-affected persons. The onus squarely lies upon the NTPC to bring the establishment and operation of the project within the ambit of balanced sustained development. [Para 87]