# BENGALURU DEVELOPMENT AUTHORITY v. MR. SUDHAKAR HEGDE & ORS

- **Citation:** [2020] 5 S.C.R. 755
- **Court:** Supreme Court of India
- **Decided:** 2020-03-17
- **Case number:** Civil Appeal No. 2566 of 2019
- **Bench:** Dr. Dhananjaya Y Chandrachud, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bengaluru-development-authority-v-mr-sudhakar-hegde-ors-34568
- **Pages:** 58

## Headnote

Environment (Protection) Act, 1986 - Environment (Protection)
Rules, 1986 - Bangalore Development Authority Act, 1976 -
Environment Impact Assessment Notification 2006 - Peripheral Ring
Road Project - National Green Tribunal quashed the Environmental
clearance granted to the appellant for the said PRR project - NGT
was of the view that the primary data upon which the Environment
Impact Assessment report was based was collected more than 3 years
prior to its submission to the State Environment Impact Assessment
Authority - There was substantial delay in the preparation of the
EIA report - Accordingly, the NGT directed the appellant to conduct
a fresh rapid EIA and clarified the project proponent not to proceed
on the basis of the impugned Environmental clearance - On appeal,
held: In the instant case, there was failure of due process
commencing from issuance of the Terms of Reference and leading
to the grant of the Environmental clearance for the PRR Project -
The appellant, as project proponent sought to rely on an expired
Terms of Reference and proceeded to prepare the final EIA report
on the basis of outdated primary data - At the same time, the process
leading to the grant of the Environmental clearance was replete
with contradictions on the existence of forest land to be diverted
for the Project as well as the number of trees required to be felled -
The State Expert Appraisal Committee, as an expert body abdicated
its role and function by relying solely on the responses submitted to
it by the appellant and failing to comply with its obligations under
the OMs issued by the MOEF-CC from time to time - The State Expert
Appraisal Committee failed in its fundamental duty mandated to do
under the 2006 Notification - Therefore, inter-alia, following
directions issued: (i) The appellant directed to conduct a fresh rapid
EIA for the proposed PRR project; (ii) The appellant, for the purpose
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of conducting the rapid EIA, hired a sector-specific accredited EIA
Consultant; (iii) Appellant to ensure the requisite clearances under
various enactments submitted to the State Expert Appraisal Committee
prior to the consideration by it of the information submitted by the
appellant in accordance with the OMs issued by the MOEF-CC
from time to time; (iv) State Expert Appraisal Committee shall
thereafter assess the rapid EIA report in accordance with the role
assigned to it under the 2006 Notification and if it is of the opinion
that the appellant has complied with the 2006 Notification as well
as the directions issued by the Supreme Court, only then shall it
recommend to the State Environment Impact Assessment Authority
the grant of Environmental clearance for the proposed project -
The order of the NGT directing the appellant to conduct a rapid
EIA is upheld.
Disposing of the appeal, the Court
HELD: 1. The protection of the environment is premised
not only on the active role of courts, but also on robust
institutional frameworks within which every stakeholder complies
with its duty to ensure sustainable development. A framework of
environmental governance committed to the rule of law requires
a regime which has effective, accountable and transparent
institutions. Equally important is responsive, inclusive,
participatory and representative decision making. Environmental
governance is founded on the rule of law and emerges from the
values of our Constitution. Where the health of the environment
is key to preserving the right to life as a constitutionally recognized
value under Article 21 of the Constitution, proper structures for
environmental decision making find expression in the guarantee
against arbitrary action and the affirmative duty of fair treatment
under Article 14 of the Constitution. Sustainable development is
premised not merely on the redressal of the failure of democratic
institutions in the protection of the environment, but ensuring
that such failu

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BENGALURU DEVELOPMENT AUTHORITY
v.
MR. SUDHAKAR HEGDE & ORS.
(Civil Appeal No. 2566 of 2019)
MARCH 17, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Environment (Protection) Act, 1986 - Environment (Protection)
Rules, 1986 - Bangalore Development Authority Act, 1976 -
Environment Impact Assessment Notification 2006 - Peripheral Ring
Road Project - National Green Tribunal quashed the Environmental
clearance granted to the appellant for the said PRR project - NGT
was of the view that the primary data upon which the Environment
Impact Assessment report was based was collected more than 3 years
prior to its submission to the State Environment Impact Assessment
Authority - There was substantial delay in the preparation of the
EIA report - Accordingly, the NGT directed the appellant to conduct
a fresh rapid EIA and clarified the project proponent not to proceed
on the basis of the impugned Environmental clearance - On appeal,
held: In the instant case, there was failure of due process
commencing from issuance of the Terms of Reference and leading
to the grant of the Environmental clearance for the PRR Project -
The appellant, as project proponent sought to rely on an expired
Terms of Reference and proceeded to prepare the final EIA report
on the basis of outdated primary data - At the same time, the process
leading to the grant of the Environmental clearance was replete
with contradictions on the existence of forest land to be diverted
for the Project as well as the number of trees required to be felled -
The State Expert Appraisal Committee, as an expert body abdicated
its role and function by relying solely on the responses submitted to
it by the appellant and failing to comply with its obligations under
the OMs issued by the MOEF-CC from time to time - The State Expert
Appraisal Committee failed in its fundamental duty mandated to do
under the 2006 Notification - Therefore, inter-alia, following
directions issued: (i) The appellant directed to conduct a fresh rapid
EIA for the proposed PRR project; (ii) The appellant, for the purpose
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of conducting the rapid EIA, hired a sector-specific accredited EIA
Consultant; (iii) Appellant to ensure the requisite clearances under
various enactments submitted to the State Expert Appraisal Committee
prior to the consideration by it of the information submitted by the
appellant in accordance with the OMs issued by the MOEF-CC
from time to time; (iv) State Expert Appraisal Committee shall
thereafter assess the rapid EIA report in accordance with the role
assigned to it under the 2006 Notification and if it is of the opinion
that the appellant has complied with the 2006 Notification as well
as the directions issued by the Supreme Court, only then shall it
recommend to the State Environment Impact Assessment Authority
the grant of Environmental clearance for the proposed project -
The order of the NGT directing the appellant to conduct a rapid
EIA is upheld.
Disposing of the appeal, the Court
HELD: 1. The protection of the environment is premised
not only on the active role of courts, but also on robust
institutional frameworks within which every stakeholder complies
with its duty to ensure sustainable development. A framework of
environmental governance committed to the rule of law requires
a regime which has effective, accountable and transparent
institutions. Equally important is responsive, inclusive,
participatory and representative decision making. Environmental
governance is founded on the rule of law and emerges from the
values of our Constitution. Where the health of the environment
is key to preserving the right to life as a constitutionally recognized
value under Article 21 of the Constitution, proper structures for
environmental decision making find expression in the guarantee
against arbitrary action and the affirmative duty of fair treatment
under Article 14 of the Constitution. Sustainable development is
premised not merely on the redressal of the failure of democratic
institutions in the protection of the environment, but ensuring
that such failures do not take place. [Para 79][809-F-H; 810-AB]
2. In the present case, there has been a failure of due
process commencing from issuance of the Terms of Reference
and leading to the grant of the Environmental Clearance for the
Peripheral Ring Road project. The appellant, as project proponent
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sought to rely on an expired ToR and proceeded to prepare the
final Environment Impact Assessment report on the basis of
outdated primary data. At the same time, the process leading to
the grant of the EC was replete with contradictions on the
existence of forest land to be diverted for the project as well as
the number of trees required to be felled. [Para 80][810-B-C]
3. The State Expert Appraisal Committee, as an expert body
abdicated its role and function by relying solely on the responses
submitted to it by the appellant and failing to comply with its
obligations under the OMs issued by the MoEF-CC from time
to time. In failing to provide adequate reasons for its
recommendation to the State Environment Impact Assessment
Authority for the grant of an EC, it failed in its fundamental duty
of ensuring both the application of mind to the materials
presented to it as well as the furnishing of reasons which it is
mandated to do under the 2006 Notification. [Para 81][810-D-E]
4. In this view of the matter, neither the process of decision
making nor the decision itself can pass legal muster. Equally,
this Court must bear in mind the need to balance the development
of infrastructure and the environment. This Court is of the view
that while the need for a road project is factored into the decisionmaking calculus, equal emphasis should be placed on the
prevailing state of the environment. The appeal which was filed
before the NGT in 2015, was finally disposed of at a belated stage
only in 2019. [Para 82][810-E-F]
5. Bearing in mind the need to bring about a requisite
balance, this Court proposes to issue the following directions
under Article 142 of the Constitution:
(i) The appellant is directed to conduct a fresh rapid EIA
for the proposed PRR project;
(ii) The appellant shall, for the purpose of conducting the
rapid EIA, hire a sector-specific accredited EIA consultant;
(iii) The appellant shall have due regard to the various
deficiencies noted in the present judgment as well as ensure that
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additional precautions are taken to account for the prevailing
state of the environment;
(iv) The appellant shall ensure that the requisite clearances
under various enactments have been obtained and submitted to
the SEAC prior to the consideration by it of the information
submitted by the appellant in accordance with the OMs issued
by the MoEF-CC from time to time;
(v) The SEAC shall thereafter assess the rapid EIA report
and other information submitted to it by the appellant in
accordance with the role assigned to it under the 2006 Notification.
If it is of the opinion that the appellant has complied with the
2006 Notification as well as the directions issued by this Court,
only then shall it recommend to the SEIAA the grant of EC for
the proposed project. 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; and
(vi) The appellant shall consult the requisite authority to
ensure that no potential damage is caused by the project to the
petroleum pipelines over which the proposed road may be
constructed. [Para 83][810-D-H; 811-A-E]
State Bank of India v. V. Ramakrishnan (2018) 17 SCC
394 : [2018] 10 SCR 974; Lafarge Umiam Mining
Private Limited v. Union of India (2011) 7 SCC 338 :
[2011] 7 SCR 954 - relied on.
Shreeranganathan K P v. Union of India 2014 ALL (I)
NGT Reporter (1) (SZ) 1 - referred to.
Case Law Reference
[2018 10 SCR 974
relied on
Para 28
[2011] 7 SCR 954
relied on
Para 75
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2566
of 2019.
From the Judgment and Order dated 08.02.2019 of the National
Green Tribunal, Principal Bench, New Delhi in Appeal No. 27 of 2015.
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Shyam Divan, Sr. Adv., Anand Sanjay M. Nuli, Dharm Singh,
Suraj Kaushik, Nanda Kumar K.B., Bhavratan, M/S. Nuli & Nuli, Advs.
for the Appellant.
Nikhil Nayyar, Sr. Adv., T. V. S. Raghavendra Sreyas, Mrs. Gayatri
Gulati Sreyas, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
Index
A Introduction
B Submissions
C Issues
D Date of commencement of the PRR project
E Applicability of the EIA Notification 2006
F Compliance with the procedure under the EIA Notification 2006
G Deficiencies in the EIA report
 G.1 Accreditation of the EIA consultant
 G.2 Forestland
 G.3 Trees
 G.4 Pipeline
H Appraisal by the SEAC
I Courts and the environment
J Directions
A Introduction
1. The present appeal arises from a judgment of the Principal
Bench of the National Green Tribunal1 dated 8 February 2019 quashing
the Environmental Clearance2 granted to the appellant for the development
of an eight lane Peripheral Ring Road3connecting Tumkur Road to Hosur
Road and totaling a length of 65 kilometers. The NGT was of the view
1 NGT
2 EC
3 PRR
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that the primary data upon which the Environment Impact Assessment4
report was based was collected more than three years prior to its
submission to the State Environment Impact Assessment Authority5. The
NGT was of the view that it was not necessary to adjudicate upon the
other contentions that were urged in support of quashing the EC as
there was a substantial delay in the preparation of the EIA report.
Accordingly, the NGT directed the appellant to conduct a fresh rapid
EIA and clarified that the "project proponent will not proceed on the
basis of the impugned Environmental Clearance." Assailing the order of
the NGT, the appellant, as project proponent, is in appeal before this
Court.
2. In a bid to address the growing need for efficient
commutation,address traffic congestion and connect the BangaloreMysore Infrastructure Corridor (NICE road) with more access points,
the appellant formulated the PRR project scheme in 2005. A preliminary
notification was issued on 27 May 2005 under Section 17(1) and (3) of
the Bangalore Development Authority Act 19766 to acquire certain land
for the execution of the project. The stated purpose of the project was:
"1) To decongest the traffic in Bangalore City;
2) To cater intercity connectivity and intercity traffic;
3) To reduce pollution in the city;
4) To reduce heavy vehicles traffic i.e., Lorry and Trucks; and
5) To decongest the traffic on outer ring road."
3. Another preliminary notification was issued on 23 September
2005 which concerned the realignment of the proposed road project. A
final notification under Section 19(1) of the BDA Act was issued on 29
June 2007 for the acquisition of the proposed land. The notifications
were challenged before the High Court of Karnataka in Writ proceedings7
on the ground that the appellant had no authority to issue the notifications
and acquire land for the proposed PRR project. By a judgment dated 22
July 2014, the High Court dismissed the writ petition on the ground that
the appellant was authorised under the BDA Act to acquire the land for
the project in question. The Writ Appeal against this was dismissed on
the ground of default on 9 February 2017.
4 EIA
5 SEIAA
6 BDA Act
7 WP No. 4550/2008
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4. The appellant, as project proponent, submitted an application8to
the SEIAA on 10 September 2009 under the EIA Notification 20069
seeking an EC for the PRR. The Terms of Reference10 were prepared
by the State Expert Appraisal Committee11on 21 November 2009.
Primary data was collected between December 2009 and February 2010.
The final EIA report was placed before the SEAC and the SEIAA in
October 2014. An EC was granted by the SEIAA on 20 November
2014. The first and second respondents filed an appeal to the NGT
challenging the grant of the EC. The NGT, by an interim order dated 15
April 2015 granted an interim stay of the EC. The relevant portion of the
order reads:
"Pointing to the EIA report which was placed before the 1st
respondent, the counsel for the appellant would submit that the
first part of the report would clearly indicate that if the road was
constructed, it would pass through the Reserve Forest and the
later part it would submit that the Forest clearance is not necessary
which by itself would suffice to reject the recommendation. The
EIA report would clearly indicate that if the proposed road has
got to be constructed approximately 200 trees were to be cut
which is thoroughly inconsistent to the report given by the
Horticulture and Forest Department. According to their report, it
would require felling of 16,685 trees. Added further by the counsel
for the appellant that if the proposed road is allowed to be
constructed it would be above the underground pipe line already
laid for transporting petroleum from Mangalore to Bangalore and
if any leakages happens in future it would bring forth serious
consequence...
There exists a prima facie case in favour of the appellant for
granting an interim order of stay..."
The NGT noted the discrepancy between the submission of the
appellant and the existence of a reserved forest through which the
proposed road was to pass. The NGT recorded that while the EIA report
stated that only 200 trees would be cut for the proposed project, the
8 No. BDA/EM/TA3/PRR/EIA/T333/09-10
9 2006 notification
10 ToR
11 SEAC
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report given by the Horticulture and Forest Department indicated that
about 16,685 trees would be required to be felled for the proposed project.
By its final order dated 8 February 2019, the NGT stayed the operation
of the EC granted by the SEIAA. The relevant portion of the order
reads:
"The Environmental Clearance was granted on 20.11.2014. Thus,
the primary data was more than three years prior to the EIA
report. There are omissions in the EIA report with regard to data
of forests land as well as the provisions of revised Master Plan,
2015 prepared by the BDA. Thippagondanahalli Reservoir (TGR)
catchment area has been suppressed in the EIA report. Green
cover particulars have been overlooked. Further objection is that
there is proximity of the area to the petroleum pipelines and land
earmarked for petroleum pipelines overlaps the project. According
to the appellant, Stage-I Forest Clearance was not obtained as
required...
It is not necessary to adjudicate on the contentions raised, having
regard to the patent fact that there was substantial delay in EIA
and a period of almost five years passed even thereafter. This
Tribunal, vide order dated 15.04.2015, considered the issue...It
will, thus, be in the interest of justice that a fresh rapid EIA is
conducted. If the project is found viable after incorporating due
abatement measures, including the suggestions of the appellant,
the same can be taken up without further delay..."
The NGT directed the appellant to conduct a rapid EIA. It was
further directed that if the project is found to be viable after incorporating
abatement measures, "the same can betaken up without delay". Notice
was issued by this Court on 15 March 2019.
B Submissions
5. Assailing the order of the NGT, Mr. Shyam Divan, learned
Senior Counsel appearing on behalf of the appellant contended that:
(i)
The 2006 Notification obliges a project proponent to seek
prior EC only for projects that are listed in the Schedule to
the Notification. Para 7(f) of the Schedule includes only those
projects that are either National or State Highways. The PRR
project does not fall within the ambit of either the National
Highways Act 1956 or the Karnataka Highways Act 1964.
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Consequently, the appellant was under no obligation under
the 2006 Notification to seek a prior EC for the PRR project;
(ii)
The 2006 Notification came into effect from the date of its
publication in the Official Gazette on 14 September 2006. It
is prospective in its application. The PRR project commenced
on 23 September 2005 upon the issuance of the preliminary
notification under the BDA Act and as such, on the date of
the coming into force of the 2006 notification, no obligation
existed on the appellant to seek a prior EC for the PRR
project;
(iii) The appellant executed the EIA process and applied for the
grant of an EC out of abundant caution;
(iv) The first respondent has challenged the grant of the EC by
the SEIAA only because his appeal before the Karnataka
High Court challenging the acquisition of land for the PRR
project was unsuccessful. The present proceedings are
merely a method of delaying the acquisition proceedings;
(v)
The SEAC acceded to the request of the appellant to not
forward to the SEIAA a recommendation for the closure of
the proposal. The SEAC recommended to the SEIAA the
grant of the EC to the project in question after due
consideration of the EIA report in its 121st meeting between
11 and 18 November 2014; and
(vi) All objections raised by the first respondent concerning
forests, the cutting of trees and the protection of the reservoir
were adequately addressed in the EIA report submitted in
2014, on which basis an EC was granted to the PRR project.
6. On the other hand, Mr. Nikhil Nayyar, learned Senior Counsel
appearing on behalf of the first respondent contended:
(i)
The term 'highway' or 'expressway' used in the 2006
Notification must be given a wide interpretation and not be
restricted to the issuance of a notification under central or
state enactments;
(ii)
Both the National Highway Act 1956 and the Karnataka
State Highway Act 1964 concern the acquisition of land, its
development and permissions concerning the collection of
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toll/fee. The statutory framework does not envisage the wide
definition to be attributed to the term 'highway' in matters
concerning the protection of the environment;
(iii) The appellant itself admitted in its EIA report that the PRR
project is a category 'B' project falling under the purview of
para 7(f) of the Schedule under the 2006 Notification;
(iv) The primary data for the PRR project was collected between
December 2009 and February 2010. The EAC conducted
the appraisal process after a substantial delay of over four
years in the year 2014. This defeats the purpose for which
ToRs are issued as the state of the environment is constantly
changing;
(v)
An OM dated 22 March 2010 issued by the Ministry of
Environment and Forests12 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 OM further
stipulates that a ToR is valid only for a period of four years.
The EIA report was prepared after the expiry of the ToR
and is legally unsustainable;
(vi) The SEIAA decided to close the file for the PRR project on
17 May 2013, which decision was communicated to the
appellant on 25 July 2013. A party aggrieved by the action of
the SEIAA may only file an appeal under Section 16 of the
NGT Act and the SEIAA was not authorised to reopen the
file on the request of the appellant;
(vii) There was no collection of additional data in the year 2014.
The report which is styled as a rapid EIA report in the year
2014 is nothing but the final EIA report under the 2006
Notification which was prepared after the public consultation
process was conducted in February 2014;and
(viii) There are significant omissions in the EIA report concerning
forest land, green cover, number of trees required to be cut,
the catchment area in the Thippagondanahalli Reservoir and
12 MoEF, later renamed as MoEFCC in 2014
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proximity of the PRR project to the petroleum pipelines
underneath. Material concealment by the project proponent
invalidates the EC which was granted by the SEIAA.
7. The rival submissions fall for our consideration.
C Issues
8. Essentially this Court is required to decide:
(i) Whether the PRR project commenced prior to the coming into
force of the 2006 Notification;
(ii) 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 aprior EC; and
(iii) 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.
D Date of commencement of the PRR project
9. This Court is required to adjudicate whether it is the issuance
of a preliminary notification under Section 17 of the BDA Act or a final
notification under Section 19 of the BDA Act that constituted the
identification of the proposed site for the project and marked its
commencement for the purposes of the 2006 Notification.
10. On 27 January 1994, the MoEF, in exercise of the powers
conferred by sub-section (1) and clause (v) of sub-section (2) of Section
3 of the Environment (Protection) Act 1986 Act read with clause (d) of
sub-rule 3 of rule 5 of the Environment (Protection) Rules, 1986, issued
a notification imposing restrictions and prohibitions on the expansion and
modernisation of any activity or a new project unless a prior EC was
granted in accordance with the procedure stipulated in the notification.
On 14 September 2006, the MoEF released the 2006 Notification in
supersession of the previous notification. The 2006 Notification directed
that:
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"...on and from the date of its publication the required
construction of new projects or activities or the expansion or
modernization of existing projects or activities listed in the
Schedule to this notification entailing capacity addition with
change in process and or technology shall be undertaken in
any part of India only after the prior environmental clearance
from the Central Government or as the case may be, by the State
Level Environment Impact Assessment Authority, duly constituted
by the Central Government under sub-section (3) of section 3 of
the said Act, in accordance with the procedure specified hereinafter
in this notification."
(Emphasis supplied)
11. The 2006 Notification came into force on the date of its
publication and obliges every project proponent to seek prior EC for the
projects and activities which are listed in the Schedule to the Notification.
According to para 2 of the 2006 Notification, all new projects or activities
listed in the Schedule to the 2006 Notification shall require a prior EC
from the concerned regulatory authority:
"2. Application for Prior Environmental Clearance (EC):- An
application seeking prior environmental clearance in all cases shall
be made in the prescribed Form 1 annexed herewith and
Supplementary Form 1A, if applicable, as given in Appendix II,
after the identification of prospective site(s) for the project
and/or activities to which the application relates, before
commencing any construction activity, or preparation of
land, at the site by the applicant. The applicant shall furnish,
along with the application, a copy of the pre-feasibility project
report except that, in case of construction projects or activities
(item 8 of the Schedule) in addition to Form 1 and the
Supplementary Form 1A, a copy of the conceptual plan shall be
provided, instead of the pre-feasibility report."
(Emphasis supplied)
Once a prospective site has been identified by the applicant for
the proposed project, all applications seeking an EC shall be made in the
prescribed Form 1 and Supplementary Form 1A, if applicable which
contains a detailed list of the extent and potential impact of the proposed
project. The application must be submitted after the identification of the
prospective site and prior to the commencement of any construction
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activity, or preparation of the land.Thus, the action by the project
proponent that is relevant to the obligation to seek a prior EC under the
2006 notification is the identification of the prospective site for the
execution of the proposed project.
12. Section 2(a) of the BDA Act defines "authority" as the
Bangalore Development Authority constituted under Section 3 of the
Act. Chapter III of the Act deals with development schemes and the
procedures that must be complied with in the carrying out of a
development scheme. Under Section 15, the appellant may draw up a
detailed development scheme for the development of the Bangalore
metropolitan area. Section 16(1) mandates that the appellant must also
provide, in the formulation of the scheme, the details of the land proposed
to be acquired for the development scheme. Section 17 contemplates
the issuance of a preliminary notification. It reads:
"17. Procedure on completion of scheme.- (1) When a
development scheme has been prepared, the Authority shall draw
up a notification stating the fact of a scheme having been made
and the limits of the area comprised therein, and naming a place
where particulars of the scheme, a map of the area comprised
therein, a statement specifying the land which is proposed to be
acquired and of the land in regard to which a betterment tax may
be levied may be seen at all reasonable hours.
(2) A copy of the said notification shall be sent to the Corporation
which shall, within thirty days from the date of receipt thereof,
forward to the Authority for transmission to the Government as
hereinafter provided, any representation which the Corporation
may think fit to make with regard to the scheme.
(3) The Authority shall also cause a copy of the said notification
to be published in [ x xx ] the official Gazette and affixed in some
conspicuous part of its own office, the Deputy Commissioner's
Office, the office of the Corporation and in such other places as
the Authority may consider necessary.
(4) If no representation is received from the Corporation within
the time specified in sub-section (2), the concurrence of the
Corporation to the scheme shall be deemed to have been given.
(5) During the thirty days next following the day on which such
notification is published in the official Gazette the Authority shall
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serve a notice on every person whose name appears in the
assessment list of the local authority or in the land revenue register
as being primarily liable to pay the property tax or land revenue
assessment on any building or land which is proposed to be acquired
in executing the scheme or in regard to which the Authority
proposes to recover betterment tax requiring such person to show
cause within thirty days from the date of the receipt of the notice
why such acquisition of the building or land and the recovery of
betterment tax should not be made.
(6) The notice shall be signed by or by the order of the
[Commissioner] and shall be served,-
(a) by personal delivery or if such person is absent or cannot be
found, on his agent, or if no agent can be found, then by leaving
the same on the land or the building ; or (b) by leaving the same at
the usual or last known place of abode or business of such person;
or (c) by registered post addressed to the usual or last known
place of abode or business of such person.
Section 17 stipulates that the appellant shall, upon the preparation
of a scheme under Section 15, notify that a scheme has been prepared
along with the specifications of the scheme, a map of the area comprised
therein and the details of the land proposed to be acquired.The notification
is forwarded to the Corporation of the City of Bangalore, which is granted
thirty days to provide its comments to the appellant authority for
transmission to the government along with the scheme for sanction.
Section 17(3) stipulates that a copy of the notification shall be published
inthe Official Gazette and affixed in conspicuous parts of the offices of
the appellant and the Corporation. Section 17(5) mandates that the
appellant shall serve on every person whose land is proposed to be
acquired a notice to show-cause within thirty days onwhy the acquisition
of the building or land must not take place.
13. Section 18 stipulates that where the procedure stipulated under
Section 17 is complete, the appellant shall submit the scheme with any
modifications, to the Government of Karnataka for sanction subject to
the conditions stipulated therein. Section 18 reads:
"18. Sanction of scheme.- (1) After publication of the scheme
and service of notices as provided in section 17 and after
consideration of representations, if any, received in respect thereof,
the Authority shall submit the scheme, making such modifications
therein as it may think fit, to the Government for sanction,
furnishing,-
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(a) a description with full particulars of the scheme including
the reasons for any modifications inserted therein;
(b) complete plans and estimates of the cost of executing the
scheme;
(c) a statement specifying the land proposed to be acquired;
(d) any representation received under sub-section (2) of section
17;
(e) a schedule showing the rateable value, as entered in the
municipal assessment book on the date of the publication of a
notification relating to the land under the section 17 or the land
assessment of all land specified in the statement under
clause(c); and
(f) such other particulars, if any, as may be prescribed.
(2) Where any development scheme provides for the construction
of houses, the Authority shall also submit to the Government plans
and estimates for the construction of the houses.
(3) After considering the proposal submitted to it the Government
may, by order, give sanction to the scheme."
Under this provision, the appellant is required to furnish details of
the land proposed to be acquired along with a schedule showing the
rateable value, as entered in the municipal assessment book on the date
of the publication of the notification. The appellant furnishes to the
government a description with full particulars of the scheme including
the reasons for any modifications inserted, plans and estimates of costs
and a statement specifying the land proposed to be acquired.Significantly,
if the government is satisfied with the proposed scheme, it may accord
sanction to the scheme under Section 18(3) of the Act. A scheme
formulated under Section 15 may only be carried out where sanction
has been accorded to the scheme by the Government under Section
18(3) of the Act.
14. Section 19 of the Act reads thus:
"19. Upon sanction, declaration to be published giving
particulars of land to be acquired.- (1) Upon sanction of the
scheme, the Government shall publish in the official Gazette a
declaration stating the fact of such sanction and that the land
proposed to be acquired by the Authority for the purposes of
the scheme is required for a public purpose.
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(2) The declaration shall state the limits within which the land
proposed to be acquired is situated, the purpose for which it is
needed, its approximate area and the place where a plan of
the land may be inspected.
(3) The said declaration shall be conclusive evidence that the
land is needed for a public purpose and the Authority shall,
upon the publication of the said declaration, proceed to execute
the scheme.
(4) If at any time it appears to the Authority that an improvement
can be made in any part of the scheme, the Authority may
alter the scheme for the said purpose and shall subject to the
provisions of sub-sections (5) and (6), forthwith proceed to
execute the scheme as altered.
(5) If the estimated cost of executing the scheme as altered
exceeds, by a greater sum than five per cent the estimated
cost of executing the scheme as sanctioned, the Authority shall
not, without the previous sanction of the Government, proceed
to execute the scheme as altered.
(6) If the scheme as altered involves the acquisition otherwise
than by agreement, of any land other than that specified in the
schedule referred to in clause (e) of sub-section (1) of section
18, the provisions of sections 17 and 18 and of sub-section (1)
of this section shall apply to the part of the scheme so altered
in the same manner as if such altered part were the scheme."
Under Section 19, once the Government sanctions the appellant's
scheme, a final notification is published by the government in the Official
Gazette declaring that sanction has been received and that the land
proposed to be acquired is required for a public purpose. The final
notification specifies the limits within which the land proposed to be
acquired is situated and specifies the place at which people may inspect
the plan. The appellant is authorised under Section 19(4) to alter the
scheme subject to the sub-sections (5) and (6). Section 19(6) stipulates
that if acquisition of additional land is required over and above the details
that were furnished by the appellant under Section 18, and otherwise
than by agreement with the person whose land is proposed to be acquired,
the procedure stipulated in Section 17 and 18 shall be followed.
15. The BDA Act was enacted with the purpose of establishing a
development authority for the development of the city of Bangalore and
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adjacent areas. Sections 17, 18 and 19 stipulate the mechanism that
must be followed by the appellant leading up to the grant of government
sanction for a scheme formulated under Section 15. The purpose
underlying Section 17 is to grant to both the Corporation and the persons
whose lands are proposed to be acquired an opportunity to file their
objections to the proposed scheme and the acquisition of land required
for the execution of the project. Though the land proposed to be acquired
for the scheme is stipulated in the preliminary notification under Section
17, the provision to forward to the Corporation a copy as well as serve
notices to persons whose lands are proposed to be acquired sub-serves
the principles of natural justice where an affected party is extended the
right to object to a proposed scheme.
16. Upon the receipt of suggestions and objections, if any, the
appellant may modify the scheme in accordance with the suggestions
received and thereafter forward to the Government the scheme for the
grant of sanction. However, it is only upon the grant of sanction by the
Government under Section 18(3), that a final notification under Section
19 is issued. It is only upon the grant of sanction by the Government that
a proposed scheme is deemed to be finalized and carried into effect.
17. The 2006 Notification stipulates an obligation to commence
the EIA process once a prospective site is identified and before the
commencement of any construction or preparation of land. It may be
possible that following the formulation of a scheme under Section 15
and the issuance of a preliminary notification under Section 17,
government sanction is denied or the appellant drops the proposed
scheme prior to the grant of sanction or the issuance of the final
notification. In such situations, if it were held that it is the issuance of the
preliminary notification identifying the proposed site for the project that
marked the commencement of the project for the purposes of the 2006
Notification, the appellant would be under an obligation to carry out the
EIA process for a proposed scheme which may not eventually materialize.
18. The EIA process under the 2006 Notification serves as a
balance between development and protection of the environment: there
is no trade-off between the two. In laying down a detailed procedure for
the grant of an EC, the 2006 notification attempts to bridge the perceived
gap between the protection of the environment and development. The
basic postulate of the 2006 Notification is that the path which is prescribed
for disclosures, studies, gathering data, consultation and appraisal is
designed in a manner that would secure decision making which is
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transparent, responsive and inclusive. While the BDA Act was enacted
with the purpose of establishing a development authority for the
development of the city of Bangalore and adjacent areas, the 2006
Notification embodies the notion that the development agenda of the
nation must be carried out in compliance with norms stipulated for the
protection of the environment and its complexities. The BDA Act and
the 2006 Notification operate in different fields. It cannot be said that a
site is deemed identified for the purpose of triggering the obligations
under the 2006 Notification upon the issuance of a preliminary notification
under Section 17 of the BDA Act. Adopting a contrary interpretation
would lead to the absurd result where a project proponent is obligated to
carry out the EIA process for a scheme even prior to the grant of
government sanction and a final notification carrying into effect the
proposed scheme. In this view of the matter, the prospective site is deemed
to be identified only upon the issuance of the final notification under
Section 19 after the proposed scheme has received Government sanction
under Section 18(3).
19. The final notification under Section 19(1) of the BDA Act
was issued on 29 June 2007 following the grant of government sanction
for the acquisition of the land. This being after the coming into force of
the 2006 Notification, the contention urged by the appellant that the project
commenced prior to the coming into force of the 2006 Notification cannot
be accepted.
E Applicability of the EIA Notification 2006
20. Essentially, this Court is required to address the contention
urged by Mr. Shyam Divan, learned Senior Counsel appearing on behalf
of the appellant that the PRR project, being neither a project falling
within Section 2 of the National Highways Act 1956 or Section 3 of the
Karnataka Highways Act 1964, does not fall within the ambit of the
Schedule to the 2006 Notification.
21. Para 2 of the 2006 Notification reads thus:
"2.