# HANUMAN LAXMAN AROSKAR v. UNION OF INDIA

- **Citation:** [2019] 5 S.C.R. 916
- **Court:** Supreme Court of India
- **Decided:** 2019-03-29
- **Case number:** Civil Appeal No. 12251 of 2018
- **Bench:** Dr. Dhananjaya Y Chandrachud, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hanuman-laxman-aroskar-v-union-of-india-33771
- **Pages:** 93

## Headnote

Environmental Law:
Environmental clearance (EC) - Grant of - For development
of airport in Goa - Challenged before National Green Tribunal
(NGT) - NGT affirmed the EC holding that the project did not
compromise with the environment and concluded that further
safeguards for environmental protection needed to be incorporated
- On appeal, held: Rule of law requires a regime which has effective,
accountable and transparent institutions - Responsive, inclusive,
participatory and representative decision making are key ingredients
to the rule of law - Public access to information is fundamental to
the preservation of rule of law - Environmental governance that is
founded on the rule of law emerges from the value of the Constitution
- Health of environment is key to preserving the right to life as a
constitutionally recognized value under Art.21 - Proper structures
for environmental decision-making find expression in the guarantee
against arbitrary action and the affirmative duty of fair treatment
u/Art. 14 of the Constitution - In the area of environmental
governance, the process of decision-making are as crucial as the
ultimate decision - The basic postulate of 2006 Notification was
that the path which was prescribed for disclosures, studies, gathering
data, consultation and appraisal was designed in a manner that
would secure a transparent, responsive and inclusive decisionmaking - In the present case there was failure to follow binding
norms under the 2006 Notification - There were serious flaws in
decision-making process - Relevant material was excluded from
consideration and extraneous circumstances were borne in mind -
EAC as an expert body abdicated its obligations to make an expert
determination based on reasons - NGT as an adjudicatory body
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failed to exercise the jurisdiction entrusted to it u/s. 16(h) r/w. s. 20
of NGT Act by merely deferring to the decision to recommend and
grant an EC - However, the need for setting up a new airport is a
matter of policy - In order to bring about a wholesome balance
between the development of infrastructure and preservation of
environment, in exercise of jurisdiction of Art. 142 of Constitution,
EAC is directed to revisit the conditions subject of which it had
granted EC, in a time bound manner - Constitution of India - Arts.
14, 21, 51A(g) and 142 - National Green Tribunal Act, 2010 -
ss. 16(h) and 20.
Government of India approved setting up of an airport in
Goa in the year 2000. Ministry of Environment and Forests of
Government of India issued Notification in 2006, mandating prior
Environmental Clearance (EC). In 2011 State of Goa as the project
proponent submitted Form 1 as stipulated in 2006 Notification.
In 2015 Expert Appraisal Committee (EAC) which was
constituted under 2006 Notification recommended the grant of
an EC for the project and the Ministry concerned approved grant
of EC. Grant of EC was challenged by the appellants before the
National Green Tribunal (NGT). NGT upheld the EC and imposed
additional conditions to safeguard the environment. Hence, the
present appeals.
Disposing of the appeals, the Court
HELD: 1. The Constitution (Forty-second Amendment) Act
1976, which came into force with effect from 3 January 1977,
inserted Article 48A to the Constitution which mandates that the
State shall endeavor to protect and improve the environment and
safeguard the forests and wildlife of the country. Article 51A(g)
of the Constitution places a corresponding duty on every citizen
to protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living
creatures. Following the decisions taken at the United Nations
Conference on the Human Environment held at Stockholm in June
1972 in which India participated, Parliament enacted the
Environment Protection Act 1986 to protect and improve the
environment and prevent hazards to human beings, other living
creatures, plants and property. [Par

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SUPREME COURT REPORTS
[2019] 5 S.C.R.
HANUMAN LAXMAN AROSKAR
v.
UNION OF INDIA
(Civil Appeal No. 12251 of 2018)
MARCH 29, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Environmental Law:
Environmental clearance (EC) - Grant of - For development
of airport in Goa - Challenged before National Green Tribunal
(NGT) - NGT affirmed the EC holding that the project did not
compromise with the environment and concluded that further
safeguards for environmental protection needed to be incorporated
- On appeal, held: Rule of law requires a regime which has effective,
accountable and transparent institutions - Responsive, inclusive,
participatory and representative decision making are key ingredients
to the rule of law - Public access to information is fundamental to
the preservation of rule of law - Environmental governance that is
founded on the rule of law emerges from the value of the Constitution
- Health of environment is key to preserving the right to life as a
constitutionally recognized value under Art.21 - Proper structures
for environmental decision-making find expression in the guarantee
against arbitrary action and the affirmative duty of fair treatment
u/Art. 14 of the Constitution - In the area of environmental
governance, the process of decision-making are as crucial as the
ultimate decision - The basic postulate of 2006 Notification was
that the path which was prescribed for disclosures, studies, gathering
data, consultation and appraisal was designed in a manner that
would secure a transparent, responsive and inclusive decisionmaking - In the present case there was failure to follow binding
norms under the 2006 Notification - There were serious flaws in
decision-making process - Relevant material was excluded from
consideration and extraneous circumstances were borne in mind -
EAC as an expert body abdicated its obligations to make an expert
determination based on reasons - NGT as an adjudicatory body
[2019] 5 S.C.R. 916
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failed to exercise the jurisdiction entrusted to it u/s. 16(h) r/w. s. 20
of NGT Act by merely deferring to the decision to recommend and
grant an EC - However, the need for setting up a new airport is a
matter of policy - In order to bring about a wholesome balance
between the development of infrastructure and preservation of
environment, in exercise of jurisdiction of Art. 142 of Constitution,
EAC is directed to revisit the conditions subject of which it had
granted EC, in a time bound manner - Constitution of India - Arts.
14, 21, 51A(g) and 142 - National Green Tribunal Act, 2010 -
ss. 16(h) and 20.
Government of India approved setting up of an airport in
Goa in the year 2000. Ministry of Environment and Forests of
Government of India issued Notification in 2006, mandating prior
Environmental Clearance (EC). In 2011 State of Goa as the project
proponent submitted Form 1 as stipulated in 2006 Notification.
In 2015 Expert Appraisal Committee (EAC) which was
constituted under 2006 Notification recommended the grant of
an EC for the project and the Ministry concerned approved grant
of EC. Grant of EC was challenged by the appellants before the
National Green Tribunal (NGT). NGT upheld the EC and imposed
additional conditions to safeguard the environment. Hence, the
present appeals.
Disposing of the appeals, the Court
HELD: 1. The Constitution (Forty-second Amendment) Act
1976, which came into force with effect from 3 January 1977,
inserted Article 48A to the Constitution which mandates that the
State shall endeavor to protect and improve the environment and
safeguard the forests and wildlife of the country. Article 51A(g)
of the Constitution places a corresponding duty on every citizen
to protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living
creatures. Following the decisions taken at the United Nations
Conference on the Human Environment held at Stockholm in June
1972 in which India participated, Parliament enacted the
Environment Protection Act 1986 to protect and improve the
environment and prevent hazards to human beings, other living
creatures, plants and property. [Para 32][951-A-C]
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2. The MoEF, in exercise of the powers conferred by subsection (1) and clause (v) of sub-section (2) of Section 3 of the
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 new project unless an EC was
granted under the procedure stipulated in the notification. Under
the notification, any person undertaking a new project or
expanding and modernizing an existing project was required to
submit an application to the Secretary, Ministry of Environment
and Forests, New Delhi. On 14 September 2006, MoEF released
another notification in supersession of the previous notification.
The salient objective which underlies the 2006 notification is the
protection, preservation and continued sustenance of the
environment when the execution of new projects or the expansion
or modernization of existing projects is envisaged. It imposes
certain restrictions and prohibitions based on the potential
environmental impact of projects unless prior EC has been
granted by the concerned authority. The EC is required before
any construction work, or preparation of land (except for securing
the land) is started on the project or activity listed in the Schedule
to the notification. [Paras 33, 37 and 40][951-C-E; 952-C; 954A-B]
3.The process to obtain environmental clearance as
stipulated by the notification for new projects comprises a
maximum of four stages, all of which may not apply depending on
the specific case stipulated under the notification: Screening;
Scoping; Public Consultation; and Appraisal. [Para 43][955-E-G]
4.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. It serves as a balance between
development and protection of the environment: there is no tradeoff between the two. The protection of the environment is an
essential facet of development. It cannot be reduced to a technical
formula. The notification demonstrates an increasing awareness
of the complexities of the environment and the heightened
scrutiny required to ensure its continued sustenance, for today
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and for generations to come. It embodies a commitment to
sustainable development. In laying down a detailed procedure
for the grant of an Environmental Clearance (EC), the 2006
notification attempts to bridge the perceived gap between the
environment and development. [Para 54][959-C-E]
5. The State of Goa as the project proponent in failing to
disclose wet lands, water sources, water bodies, biospheres,
mountains and forests within an aerial distance of 15 kilometres
as required by Form 1. The disclosure in Form 1 constitutes the
very foundation of the process which is initiated on the basis of
the information supplied by the project proponent. Following the
disclosure in Form 1, Terms of Reference (ToR) are formulated,
and this leads to the preparation of the Environmental Impact
Assessment (EIA) report. A duty is cast upon the project
proponent to make a full, complete and candid disclosure of all
aspects bearing upon the environment in the area of study. The
project proponent cannot profess an ignorance about the
environment in the study area. The project proponent is bound
by the highest duty of transparency and rectitude in making the
disclosures in Form 1. [Para 67][967-D-F]
6. Form 1 is an important ingredient in the entire process
envisaged under the 2006 notification. Hence, clause (vi) of para
8 of the 2006 notification provides that deliberate concealment
or submission of false or misleading information or data which is
material to screening or scoping or appraisal or decision on the
application shall make the application liable for rejection and lead
to the cancellation of a prior EC granted on that basis. The
declaration which is required of the project proponent is to a
similar effect. [Para 68][967-F-G]
7. Form 1 requires a disclosure of areas which are important
or sensitive for ecological reasons, among them, being "forests".
The expression "forests" is used without reference to a statutory
or artificial definition and must hence incorporate a meaning which
bears upon the ordinary description of the term. The expression
"forests", means a forest as commonly understood, without
reference to a notification under the Indian Forest Act 1927 or
any other statutory enactment. Such an interpretation will subserve
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the purpose of an (EIA). The purpose is to ensure that all relevant
facets of the environment are noticed, that base-lines are
documented, and that the potential impact of a project or activity
on the environment is assessed. Forests are forests without
reference to recognition in a statutory form devised for a specific
purpose. Therefore, it is not correct that the disclosure required
was of reserved forests comprehended within a notification under
sub-section (2) of Section 20 of the Indian Forest Act 1927.
[Para 69][967-H; 968-A-C]
T N Godavarman Thirumalpad v. Union of India
(1997) 2 SCC 267 : [1996] 9 Suppl. SCR 982;
Construction of Park at Noida near Okhla Bird
Sanctuary Anand Arya v. Union of India (2011) 1 SCC
744 : [2010] 15 SCR 783 - referred to.
8. Para 2 of the Executive Summary introducing the EIA
report acknowledges that the "surrounding land use of the airport
site is predominantly forest land". In the context of land
environment, the EIA report records that "forest is the
predominant land use in the study area". The EIA report
acknowledges that territories in Maharashtra fall within one
kilometre from the proposed greenfield airport. Villages falling
in Goa and Maharashtra within the 10 kilometre radius were
considered for assessment. Para 2.3.1 of Chapter II deals with
land use. Land use/land cover statistics for a 10 kilometre radius
from the Mopa airport in the State of Maharashtra have been
tabulated. [Para 73][969-D-E]
9. The presence of a "diverse system set as dense and
open forest, cultivated lands, sand dune vegetation, wet lands
and human habitation" is noticed in para 4.6 dealing with the
biological environment. Annexure IX to the EIA report provides
land use/land cover maps for both Goa and Maharashtra in the
study area. The maps in Annexure IX cover forested areas in
Maharashtra and Goa within an aerial boundary of 10 kilometres
from the project site. Annexure XI contains the hydro-geomorphological maps for Goa and Maharashtra. [Para 74]
[970-A-B]
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10. Information furnished in Form 1 is crucial to the
preparation of the ToR by the Expert Appraisal Committee (EAC).
The EAC comprises of experts. It is constituted, among other
reasons, for the specific purpose of assessing the information
furnished in Form 1 and preparing comprehensive ToR. There is
an intrinsic link between the disclosures in Form 1 which
constitute the basis for formulating the ToR and between the
ambit of the EIA report required by the ToR and the final EIA
report. The ToR guide the preparation of the EIA report. A failure
to disclose information in Form 1 impairs the functioning of the
EAC in the preparation of the ToR and in consequence, leads to
preparation of a deficient EIA report. [Para 75][970-D-E]
11. EACs and State Expert Appraisal Committees (SEACs)
are conferred with the authority to reject applications for the grant
of an EC at the stage of scoping itself, prior to the preparation of
the ToR. The application may be rejected on the basis of the
information furnished by the project proponent in Form 1.
Claiming an EC as a matter of right merely because the EIA report
has assessed parameters that were omitted in Form 1, bypasses
the authority of the EAC and SEAC to reject an application at the
preliminary stage and cannot be countenanced. The regulatory
authority is required to assess the final documents submitted to
it "strictly with reference to the ToR" and communicate to the
EAC and SEAC any discrepancies between the EIA report and
the ToR. A deficient ToR on the basis of the non-disclosure of
material information in Form 1 impedes this process.
[Para 76][970-F-H]
12. The failure on part of a project proponent to disclose
material information in Form 1 as stipulated under the 2006
notification has a cascading effect on the salient objective which
underlies the 2006 notification. The 2006 notification represents
an independent code with the avowed objective of balancing the
development agenda with the protection of the environment. An
applicant cannot claim an EC, under the 2006 notification, based
on substantial or proportionate compliance with the terms
stipulated in the notification. The terms of the notification lay
down strict standards that must be complied with by an applicant
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seeking an EC for a proposed project. The burden of establishing
environmental compliance rests on a project proponent who
intends to bring about a change in the existing state of the
environment. Whereas, in the present case, there has thus been
a patent failure on part of the project proponent to make
mandatory disclosures stipulated in Form 1 under the 2006
notification, that must have consequences in law. There can be
no gambles with the environment: a 'heads I win, tails you lose'
approach is simply unacceptable; unacceptable if environmental
governance is to be preserved under the rule of law.
[Para 77][971-A-D]
13. The report of the High Level Working Group (HLWG)
dated 15 April 2013 recommends that there should be a complete
ban on mining, quarrying and sand mining activity in the
Ecologically Sensitive Zone (ESZ). Similarly, it recommends that
no thermal power project should be allowed in ESZs and that all
'red category' industries should be strictly banned. Building and
construction projects of 20,000 square metres and above should
not be allowed. However, all other infrastructure and development
projects, which have been recommended, should be subject to
the grant of ECs under Category 'A' projects of the 2006
notification. [Para 82][974-B-C]
14. The glaring deficiency which emerges from the EIA
report is its failure to notice the existence of ESZs within a buffer
distance of 10 kilometres of the project site. On one hand, the
EIA report takes note of the HLWG report dated 15 April 2013.
But, on the other hand, the EIA report ignores the existence of
ESZs within the study area on the ground that the project site is
not situated in an ESZ. The purpose and object of the EIA report
is to map areas, understand their vulnerabilities, and conduct a
study on a scientific basis of the impact of the proposed project
on an ecologically sensitive terrain. The EIA report fails to meet
a classical requirement of administrative law: to take into account
a relevant consideration namely, that within the study area which
has to be considered, there is the presence of ESZs. [Para 85]
[974-G-H; 975-A-B]
15. In deducing the impact of a proposed activity on an ESZ,
it is not sufficient to take recourse to a generic assessment of a
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proposed activity on the ecology of the study area. The EIA report
must factor in those specific features which make an area
ecologically sensitive. These would encompass all aspects of
environmental concern which render the area ecologically
sensitive. This would include wet lands, water sources, water
bodies, costal zones, biospheres, mountains and forests. The
vulnerabilities of each of them must be studied as distinctive
components together with a holistic analysis of their existence in
a chain of bio-diversity. Where an area is ecologically sensitive
because of the presence of flora or fauna requiring protection,
that must be specifically adverted to and studied. The deficiency
of the EIA report emanates from its failure to notice that the
purpose of the study was not only to determine whether the project
site is ecologically sensitive. Confining itself to this aspect, the
EIA report failed to consider a crucial and relevant consideration.
[Para 86][975-C-E]
16. Since the entire study area within a radius of 10
kilometres was considered for monitoring air quality, the Court
accepts the submission that the location of the sampling points
within Goa did not preclude the monitoring of air quality within
the study area. The impact of a greenfield airport on the closing
of natural channels which feed the water bodies has not been
scientifically mapped or studied. While monitoring the noise quality, the EIA report covered a radius of 10 kilometres. In order to
obtain baseline data of noise quality, nine monitoring stations were
chosen in the study area. While it is true that all nine locations
were situated in the State of Goa, one (Patradevi) was situated on
the border shared between Goa and Maharashtra. The EIA report contains an impact study and the study area covered includes
both the States. The collection of both primary and secondary
data of fauna in the EIA report was perfunctory. The primary study
is not based on data collected from acknowledged sources such
as the Zoological Survey of India, Wildlife Institute of India and
Ministry of Earth Sciences as required under the Guidance
manual. Similarly, as regard avi-faunal studies, the EIA report
lists 385 plant species in table 4.15 of Chapter IV, titled 'Description on Environment'. It also states that 86 species of birds
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were observed during the survey in the 10 kilometre study area
from the proposed site. According to the Guidance manual, secondary data has to be collected within an aerial distance of 15
kilometres for the parameters specifically specified in column
9(III) of Form 1 of the 2006 notification. This was evidently not
done. A careful avi-faunal study was necessary, having due regard to the fact that the proposed project is an airport site. Bearing in mind the profile of airport operations, foraging or nesting
by bird species in and around the airport must not be discarded.
It must be accepted that in a project involving the setting up of
an airport, the EIA report must deal with the impact of the airport on birds and likewise the impact of birds on aircraft operations. [Paras 88, 90 and 94][976-C-D; G-H; 977-A; 979-A-E]
17. The EIA report ought to have scrutinized the number
of trees, their nature and longevity. Issues such as the extent to
which the trees or some of them were capable of being
transplanted had to be considered in the EIA report. The location
of the trees is also significant. In a given case, if the trees appear
in clusters or in a dense formation in segments of the project
site, it would be necessary to determine whether felling all of
them was necessary for the project to be implemented.
[Para 97][981-G-H; 982-A-B]
18. There was a glaring omission of the factual existence of
as many as 54,676 trees in the EIA report. For project
proponents, the environment may not possess a human voice.
But the purpose of prescribing an EIA report is precisely to
undertake a baseline study on all aspects of the environment and
to anticipate the impact of a projected activity on the environment.
Ignoring any component of the environment amounts to a serious
dereliction of duty which detracts from the rule of law in matters
of environmental governance. [Para 98][982-E-F]
19. The order of the Principal Chief Conservator of Forests
mandating transplantation, where possible, and the plantation of
ten trees for every tree felled provides a measure of rectification.
But there is a reason why issues pertaining to vegetational cover
must be taken seriously in the EIA process. The formula of
planting a set number of trees for every existing tree felled must
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be alive to the fact that the survival of new plantations is replete
with uncertainty. The survival of transplanted trees is equally a
matter of uncertainty. Though the development of infrastructure
may necessitate the felling of trees, the process stipulated under
the 2006 notification must be transparent, candid and robust. A
regulatory regime for environmental governance is based on the
hypothesis that all stakeholders will act with rectitude. Hiding
significant components of the environment from scrutiny is not
an acceptable modality to secure project approvals. There was a
serious lacuna in regard to disclosures and appraisal on this aspect
of the controversy. [Para 99][982-F-H; 983-A-B]
20. Public consultation involves a process of confidence
building by giving an important role to those who have a plausible
stake. It also recognizes that apart from the knowledge which is
provided by science and technology, local communities have an
innate knowledge of the environment. The knowledge of local
communities is transmitted by aural and visual traditions through
generations. By recognizing that they are significant
stakeholders, the consultation process seeks to preserve
participation as an important facet of governance based on the
rule of law. Participation protects the intrinsic value of inclusion.
[Para 101][983-E-F]
21. Public consultation cannot be reduced to a mere
incantation or a procedural formality which has to be completed
to move on to the next stage. Underlying public consultation is
the important constitutional value that decisions which affect the
lives of individuals must, in a system of democratic governance,
factor in their concerns which have been expressed after obtaining
full knowledge of a project and its potential environmental effects.
Apart from the intrinsic value of public consultation, it serves an
instrumental function as well. The purpose of ascertaining the
views of stakeholders, is to account for all the material concerns
in the design of the proposed project or activity. For this reason,
the process of public consultation involves several important
stages. The Pollution Control Board is under a mandate to forward
the proceedings to the regulatory authority. The project proponent
must address all material environmental concerns and make
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appropriate changes in the draft EIA and Environment
Management Plan (EMP). The project proponent may even
submit a supplementary report to the draft EIA. Each of these
elements is crucial to the design features of the 2006 notification.
A breach will render the process vulnerable to challenge on the
ground that: (i) significant environmental concerns have not been
taken into account; (ii) there was an absence of a full disclosure
when the EIA report was put up for consultation; and (iii) concerns
which have been expressed by persons affected by the project
have not been adequately dealt with or analysed. [Paras 102 and
103][984-D-H]
Utkarsh Mandal v. Union of India (2009) SCC Online
Del 3836 - relied on.
22. Crucial objections and environmental concerns which
were raised during the consultative process were reduced to a
single issue by the project proponent before the EAC: the need
for employment opportunities. The project proponent failed in
its duty to inform the EAC. The record does not indicate a critical
appraisal or analysis by the EAC. The EAC was duty bound to
apply its mind to the environmental concerns raised by
stakeholders. The duty of the project proponent to place fairly
all the environmental concerns raised during the public hearing
is the crucial link in the appraisal by the EAC. The Minutes of
the meeting indicate that there was no fair and complete disclosure
of the objections which were raised during the public hearing
before the EAC. There is evidently a failure in the process of
applying and implementing the norms laid down in the 2006
notification in this regard. [Para 107][986-F-H; 987-A-B]
23. Appraisal by the EAC is structured and defined by the
2006 notification. The process of appraisal is defined to mean "a
detailed scrutiny" by the EAC of the application and other
documents like the EIA report and the outcome of the public
consultation, including the public hearing proceedings, submitted
by the applicant to the regulatory authority for the grant of an
EC. The EAC is under a mandate to conduct the process of
appraisal in "a transparent manner". On the conclusion of these
proceedings,
the
EAC
has
to
make
"categorical
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recommendations" to the regulatory authority either for: (i) the
grant of a prior environmental clearance on stipulated terms and
conditions; or (ii) the rejection of the application. The
recommendations made by the EAC to the regulatory authority
must be based on "reasons". [Para 108][987-B-D]
24. The analysis of the EIA report is sketchy and
perfunctory and discloses an abdication of its functions by the
EAC. The requirement that the EAC must record reasons,
besides being mandatory under the 2006 notification, is of
significance for two reasons: (i) The EAC makes a
recommendation to the regulatory authority in terms of the 2006
notification. The regulatory authority has to consider the
recommendation and convey its decision to the project proponent.
The regulatory authority, as para 8(ii) provides, shall normally
accept the recommendations of the EAC. Where it disagrees, it
would request reconsideration, stating the reasons for its
disagreement. In turn, the EAC will consider the observations
of the regulatory authority and furnish its views within a stipulated
period; and (ii) The grant of an EC is subject to an appeal before
the NGT under Section 16 of the NGT Act 2010. The reasons
furnished by the EAC for its recommendation are a basic link in
the ultimate decision of the regulatory authority. They constitute
substantive material which will be considered by the Tribunal
when it considers a challenge to the grant of an EC.
[Para 111][989-H; 990-A-D]
25. The EAC refers to the delay in acquisition proceedings,
a larger public interest and the fact that the project proponent
"has not concealed facts and circumstances". Each one of the
reasons which has weighed with the EAC betrays a lack of
comprehension of the true nature of its function under the 2006
notification. The EAC has failed to consider relevant
circumstances bearing on the environmental impact of the project
and has instead considered circumstances extraneous to its
function. That the project proponent, according to the EAC, has
not concealed facts and circumstances is not reason enough to
warrant a grant of an EC. Moreover, even this hypothesis is
incorrect. There is no analysis of the EIA report. The EAC has
failed to answer to the call to its expertise. [Para 112][927-E-G]
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26. Deliberate concealment or the submission of false or
misleading information or data material for screening, scoping,
appraisal or decision on the application makes it liable for
rejection. That the project proponent must submit all information
and data without concealing relevant features is a basic hypothesis
and expectation of the 2006 notification. The EAC has not applied
its mind at all to the environmental concerns raised in relation to
the project nor do its reasons indicate an appraisal of those
concerns by evaluating the impact of the project. [Para 113]
[991-B-D]
27. The EAC is an expert body. It must speak in the manner
of an expert. Its remit is to apply itself to every relevant aspect
of the project bearing upon the environment. It is not bound by
the analysis which is conducted in the EIA report. It is duty bound
to analyse the EIA report. Where it finds it deficient it can adopt
such modalities which, in its expert decision-making capacity,
are required. The reasons which are furnished by the EAC
constitute a live link between its processes and the outomce of
its adjudicatory function. In the absence of cogent reasons, the
process by its very nature, together with the outcome stands
vitiated. [Para 114][991-D-F]
28. The EAC, as an expert body, has to scrutinize all relevant
aspects of the project or activity proposed, including its impact
on the environment. In taking that decision, the EIA report is an
input for its analysis. The scrutiny and appraisal has to be
undertaken by the EAC as an expert body and its reasons must
reflect that this has been done. As the Minutes indicate, the nonapplication of mind by the EAC is evident with reference to the
presence of 15 ESZs in the study area. The EAC notes that the
project is outside the ESZ delineated by the Kasturirangan
Committee. In the absence of a critical analysis, the EAC failed
in discharging its duties under the 2006 notification. The
recommendations of the EAC furnish a guide for the MoEFCC.
Indeed, the 2006 notification stipulates that the recommendations
of the EAC would normally be accepted. Consequently, a failure
of due process before the EAC, as in the present case, must lead
to the invalidation of the EC. [Para 116][992-B-E]
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29. In the present case, there was a failure to follow binding
norms under the 2006 notification. There were serious flaws in
the decision-making process. Relevant material was excluded
from consideration and extraneous circumstances were borne in
mind. The EAC as an expert body abdicated its obligations to
make an expert determination based on reasons. The National
Green Tribunal (NGT) as an adjudicatory body failed to exercise
the jurisdiction entrusted to it under Section 16(h) read with
Section 20 of the NGT Act 2010 by merely deferring to the
decision to recommend and grant an EC. The parameters in regard
to the existence of substantial questions of law have hence been
established in the classical or conventional sense of that
expression. [Para 125][998-D-F]
Vellore Citizens Welfare Forum v. Union Of India (1996)
5 SCC 647 : [1996] 5 Suppl. SCR 241; M C Mehta v
Kamal Nath (1997) 1 SCC 388 : [1996] 10 Suppl. SCR
12; M C Mehta v. Union of India (1997) 2 SCC 353 :
[1996] 10 Suppl. SCR 973 ; A P Pollution Control Board
v. Prof M V Nayudu (Retd.) (1999) 2 SCC 718 : [1999]
1 SCR 235; Narmada Bachao Andolan v. Union of
India (2000) 10 SCC 664 : [2000] 4 Suppl. SCR 94 ;
Indian Council for Enviro Legal Action v Union of
India (2011) 8 SCC 161 : [2011] 9 SCR 146 ; Save
Mon Region Federation v. Union of India 2013 (1) All
India NGT Reporter 1; Shreeranganathan K P v. Union
of India 2014 ALL (I) NGT Reporter (1) (SZ) 1 ;
Lafarge Umiam Mining Private Limited v. Union of
India (2011) 7 SCC 338 : [2011] 7 SCR 954; Mantri
Techzone Pvt. Ltd. v Forward Foundation (2019) 4
SCALE 218 ; Sir Chunilal v. Mehta and Sons, Ltd. v
Century Spinning and Manufacturing [1962] 3 Suppl.
SCR 549 - referred to.
30. The environmental rule of law provides an essential
platform underpinning the four pillars of sustainable
development- economic, social, environmental, and peace. It
imbues environmental objectives with the essentials of rule of
law and underpins the reform of environmental law and
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governance. The environmental rule of law becomes a priority
particularly when it is acknowledged that the benefits of
environmental rule of law extend far beyond the environmental
sector. While the most direct effects are on protection of the
environment, it also strengthens rule of law more broadly,
supports sustainable economic and social development, protects
public health, contributes to peace and security by avoiding and
defusing conflict, and protects human and constitutional rights.
Similarly, the rule of law in environmental matters is indispensable
"for equity in terms of the advancement of the Sustainable
Development Goals, the provision of fair access by assuring a
rights-based approach, and the promotion and protection of
environmental
and
other
socio-economic
rights."
[Para 128][999-A-D]
31. The rule of law requires a regime which has effective,
accountable and transparent institutions. Responsive, inclusive,
participatory and representative decision making are key
ingredients to the rule of law. Public access to information is, in
similar terms, fundamental to the preservation of the rule of law.
In a domestic context, environmental governance that is founded
on the rule of law emerges from the values of Constitution. 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. [Para 140][1004-C-E]
32. The 2006 notification must hence be construed as a
significant link in India's quest to pursue the Sustainable
Development Goals (SDGs). Many of those goals, besides being
accepted by the international community of which India is a part,
constitute a basic expression of constitutional value system. The
fundamental principle which emerges from interpretation of the
2006 notification is that in the area of environmental governance,
the means are as significant as the ends. The processes of decision
are as crucial as the ultimate decision. The basic postulate of the
2006 notification is that the path which is prescribed for
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disclosures, studies, gathering data, consultation and appraisal
is designed in a manner that would secure decision making which
is transparent, responsive and inclusive. [Para 141][1004-F-G;
1005-A-B]
33. The need for setting up a new airport is a matter of
policy. The role of the decision makers entrusted with authority
over the EIA process is to ensure that every important facet of
the environment is adequately studied and that the impact of the
proposed activity is carefully assessed. This assessment is
integral to the project design because it is on that basis that a
considered decision can be arrived at as to whether necessary
steps to mitigate adverse consequences to the environment can
be strengthened. [Para 142][1005-C-E]
34. In the present case, there has been a failure of due
process commencing from the non-disclosure of vital information
by the project proponent in Form 1. Disclosures in Form 1 are
the underpinning for the preparation of the ToR. The EIA report,
based on incomplete information has suffered from deficiencies
including the failure to acknowledge that within the study area
contemplated by the Guidance manual, there is a presence of
ESZs. [Para 143][1005-D-E]
35. The EAC, as an expert body abdicated its role and
function by taking into account circumstances which were
extraneous to the exercise of its power and failed to notice facets
of the environment that were crucial to its decision making. The
2006 notification postulates that normally, the MoEFCC would
accept the recommendation of the EAC. This makes the role of
the EAC even more significant. The NGT is an adjudicatory body
which is vested with appellate jurisdiction over the grant of an
EC. The NGT dealt with the submissions which were urged before
it in essentially one paragraph. It failed to comprehend the true
nature of its role and power under Section 16(h) and Section 20
of the NGT Act 2010. In failing to carry out a merits review, the
NGT has not discharged an adjudicatory function which properly
belongs to it. [Para 144][1005-F-H]
36. Thus, neither the process of decision making nor the
decision itself can pass legal muster. Equally, as an area requiring
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balance between development of infrastructure and the
environment, appropriate directions should be issued by this
Court, which would ensure that while the need for a public project
as significant as an international airport is duly factored into the
decision making calculus, such development proceeds on a
considered view of the importance of the prevailing state of the
environment. Bearing in mind the need to bring about a
wholesome balance between the development of infrastructure
of an airport and the preservation of the environment, time bound
directions should be issued. [Para 145][1006-A-C]
37. It would be appropriate if the EAC is directed to revisit
the conditions subject to which it granted its EC on the basis of
the specific concerns which have been highlighted in this
judgment. Such an exercise primarily is for the EAC to carry out
in its expert decision making capacity. The EAC is entrusted
with that function as an expert body. The role of judicial review is
to ensure that the rule of law is observed. Hence, in exercise of
jurisdiction under Article 142 of the Constitution, EAC is directed
to revisit the conditions for the grant of an EC. While doing so,
it would be open to the EAC to have due regard to the conditions
which were incorporated in the order of the NGT and to suitably
modulate those conditions in pursuance of the liberty which the
Court has preserved to it. To facilitate an expeditious decision,
the EAC is directed to carry out this exercise in a prescribed
time schedule during which period, the EC shall remain
suspended. After the EAC has formulated its views, they shall
be placed before this Court in a Miscellaneous Application in the
present proceedings, so as to enable the Court to pass final
orders. The Miscellaneous Application may be filed either by
the State of Goa as the project proponent or by the MoEFCC.
No other Court or Tribunal shall entertain any challenge to the
ultimate decision of the EAC and final orders thereon shall be
passed by this Court in the present proceedings. [Para 146]
[1006-C-G]
Case Law Reference
[1996] 9 Suppl. SCR 982
 referred to
 Para 15 (I)
[2010] 15 SCR 783
 referred to
 Para 20 (iv)
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[1996] 5 Suppl. SCR 241
 referred to
 Para 117
[1996] 10 Suppl. SCR 12
 referred to
 Para 117
[1996] 10 Suppl. SCR 973
 referred to
 Para 117
[1999] 1 SCR 235
 referred to
 Para 117
[2000] 4 Suppl. SCR 94
 referred to
 Para 117
[2011] 9 SCR 146
 referred to
 Para 117
2013 (1) All India NGT Reporter 1
 referred to
 Para 120
2014 ALL (I) NGT Reporter (1) (SZ) 1 referred to Para 120
[2011] 7 SCR 954
 referred to Para 122
(2019) 4 SCALE 218
 referred to Para 125
[1962] 3 Suppl. SCR 549
 referred to Para 125
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12251
of 2018.
From the Judgment and Order dated 21.08.2018 of the National
Green Tribunal, Principal Bench, New Delhi in Appeal No. 6 of 2018
(earlier Appeal No. 1/2016/WZ)
 WITH
Civil Appeal No.1053 of 2019.
K. K. Venugopal, AG, Atmaram N.S. Nadkarni, ASG, Datta
Prasad Lawande, Adv. Gen. (Goa), Parag P. Tripathi, Sr. Adv.,
Ms. Anitha Shenoy, Ms. Rashmi Nandakumar, Ritwick Dutta,
Ms. K. V. Bharathi Upadhyaya, Ms. Kanika Sood, Sany Antony,
Ms. Srishti Agnihotri, Pratap Venugopal, Ms. Surekha Raman, N.
Prashant Kumar, Akhil Abraham Roy, Sahil Singh, Ashish Krishnanath
Kuncoliencer, Chinmayee Chandra, Rajesh Shivolker, S. Salvador Rebello,
N. Prashant Nair (for M/s. K J John and Co.), Divya Prakash Pande, G.
S. Makker, Niraj Kumar, S.S.