(iii) Examining separately the details of construction and operational phases both for Environmental Management Plan and Environmental Monitoring Plan with cost and parameters,
(iv) Examining road/rail connectivity to the project site and impact on the traffic due to the proposed project/activities, 140
(v) Examining the details of aforestation measures indicating land and financial outlay, landscape plan, green belts and open spaces, and a thick green belt has been planned all around the nearest settlement to mitigate noise and vibration etc., if any,
(vi) Examining and submitting the details of noise modeling studies and mitigative measures,
(vii) Examining the details of water requirement, use of treated waste water, preparation of a water balance chart and source of water vis-à-vis waste water to be generated along with treatment facilities to be proposed.
(viii) Details of rain water harvesting proposals which should be made with due safeguards for ground water quality by maximizing recycling of water and utilization of rain water,
(ix) Examining the details of solid waste generation treatment plant and its disposal,
(x) Identification, prediction and assessing the environmental and sociological impacts on account of the project/activities and
(xi) Submission of details of corporate social responsibilities etc.,
137. In view of the above mitigative measures are more than adequate dealt with and hence, the averments contained in the appeal grounds are nothing but a figment of the appellant's imagination and this respondent has provided required Environment Monitoring Programme as required in the Manual.
138. This respondent has dealt with all issues arising out of Chapter 7 of the Manual. In any case, additional studies have been conducted by the company 141 through various qualified experts qualified to conduct the study such as feasibility study by KITCO, a comprehensive and mandatory obstruction study by M/s. Aero Survey, New Delhi which is a recognized agency for conducting obstacle study for airport project by Civil Aviation, Air Ports Authority and Director General of Civil Aviation wherein experts have dealt with the steps taken regarding the obstructions providing adequate remedial measures whereby it was suggested to displace the threshold of the runway by 285 m.
139. The Office Memorandum dated 1st September 2010 and 30th November 2011, the period for getting accredited has been extended from 30th June 2010 to 1st October 2011. An anomalous situation occurs if the interpretation given by the appellant to these office memorandums in that an unqualified person whose accreditation is rejected and if he gives a report before 1st October 2011, the said report is valid whereas this respondent who is qualified to do Category A projects, but chooses not to do them in future and applies for accreditation only for Category B projects, when they give a report after 30 th June 2010, the same will be considered invalid.
140. The accreditation memo is not signed by a competent authority and hence, is not binding on this respondent. In as much as there exists no terms which provides for accreditation, the same cannot be imposed by way of an office memorandum. The said memo is not even an executive instruction under Article 73 and Article 162 of the Constitution of India, being issued not by the State or the Union but by an instrumentality. Even assuming that the office memorandum is binding on the respondent, it is merely a procedural formality which is directive in nature and unless the appellant proves that this respondent is incompetent and that 142 hardship has been caused to him by virtue of the lack of accreditation to the respondent for Category A project. Procedural provisions are directory and it can be enforced to set aside the order only in the eventuality of hardship being proved by the party alleging the same. In any case, this project was commenced by this respondent well before the office memorandum regarding accreditation was issued and they submitted the report in the month of October 2010. In spite of being adequately qualified and having satisfactorily submitted reports in the construction of airports at Chennai, Raipur and Vadodara and various other prestigious projects, merely because this respondent applied for accreditation for Category B projects, more particularly for thermal projects for purely techno-commercial reasons, the same does not disqualify this respondent from giving a valid EIA for a project assigned to them even before the issuance of the office memorandum introducing accreditation for the consultants. Hence, denying the averments made in the appeal that it was incompetent on the part of this respondent to submit EIA report based on that the impugned EC was made, this respondent, namely Enviro Care India Pvt., Ltd., seeks to uphold the EIA report submitted by them for the said project.
141. The Kerala State Pollution Control Board, arrayed as 3 rd respondent in Appeal No. 172 of 2013 (SZ), 4th respondent in Appeal No. 1 of 2014 (SZ) and 6th respondent in Appeal No. 19 of 2014 (SZ) states in the reply affidavit as follows:
142. The Project Proponent, the fourth respondent, requested the Kerala State Pollution Control Board (KSPCB) to organize the public hearing as part of the Environmental Clearance process for their project on 02.02.2011 to construct a new airport at Aranmula in Ptahtanamthitta District of Kerala along with sufficient copies of the draft EIA and Malayalam and English version of its executive summary. In 143 consultation with the District Collector of Pathanamthitta. The public hearing was fixed at 11.00 AM on 10.03.2011 at the conference hall of the District Collectorate at Pathanamthitta. Wide publicity was given on 06.02.2011 in a national and two regional vernacular dailies in the manner and within the time specified in the notification. More than 30 days 'time was given between the date of publication and the date of hearing.
143. However, due to the declaration on 01.3.2011 of elections to the Kerala State Legislative Assembly on 13.04.2011, the date of public hearing had to be rescheduled by the District Collector with approval from the Election Commission. The public hearing was postponed to 29.04.2011 and Wide publicity was again given through the same national and two regional vernacular dailies on 27.03.2011. More than 30 days' time was again given between the date of publication and the date of hearing. On account of a sudden call for hartal in Pathanamthitta on 29.04.2011, the public hearing had to be postponed further and it was decided to hold it on 10.5.2011 at 11.00 AM at the Conference Hall of District Collectorate, Pathanamthitta. This postponement was also published on 28.04.2011 in the same dailies.
144. The soft copies of the draft environment impact assessment report and the Malayalam and English versions of the executive summary were made available for public scrutiny in the Board's website and its hard copies were made at the District Collectorate, Pathanamthitta, District Industries Centre, Kozhencherry, District Panchayat, Pathanamthitta, Elanthoor Block Panchayat, Aranmula Grama Panchayat, Mezhuveli Grama Panchayat, Mallapuzhasssery Grama Panchayat, Science, Technology and Environment Department, Thiruvananthapuram. Pollution Control Board, Pathanamthitta District Office and Pollution Control Board, Head 144 Office, Thiruvananthapuram and the draft environmental report in Malayalam and English versions of its executive summary were made available for public scrutiny at the above places for more than eighty days from 06.02.2011 to 10.05.2011. Thus the documents were made available for more than the mandatory 30 days for the public to furnish their responses.
145. The public hearing was held at 11 am on 10.05.2011 at the conference hall of the Pathanamthitta District Collectorate. The venue was selected considering its proximity to the project site and the facilities available at the conference hall to conduct the hearing. The distance from the project site to the venue was only 15 km. There were 80 participants in the public hearing and most of them were from Aranmula and adjoining areas. The hearing was presided by the District Collector. The proceedings of the public hearing, representations in original received before and during the hearing and video recording of the hearing were forwarded to the MoEF as required under the EIA Notification, 2006. The proceedings of the public hearing were prominently displayed at the head office and Pathanamthitta District Office of the Board. Action was also taken to similarly display the proceedings at the offices listed above. Thus, the KSPCB has faithfully discharged the obligations under the EIA Notification, 2006. Hence, the KSPCB seeks to dismiss the appeal.
146. As seen above, all these appeals challenge the EC given by the MoEF of the Union of India dated 18.11.2013 in favour of M/s. K.G.S. Aranmula International Airport Ltd. and for consequential direction to the authorities. Hence, all the appeals are taken up jointly. Since the array of the parties varies in each of the appeals, for the sake of convenience, the array of parties is shown hereafter as found in Appeal No. 19 of 2014. On the pleadings of the parties, following questions are formulated 145 for consideration by the Tribunal:
(1) Whether the appeals are not maintainable since the appellants are neither persons aggrieved nor have any locus standi to prefer the appeals and also on the grounds of the Tribunal not having the jurisdiction.
(2) Whether the EC is to be set aside on the grounds that the EIA is prepared by an unqualified agency.
(3) Whether the Form I submitted by the 3rd respondent/Project proponent suffers due to inadequacy and false statements.
(4) Whether the impugned EC is liable to be set aside on the ground that as the public hearing was not conducted as per the mandatory provisions of the EIA Notification, 2006.
(5) Whether the EC granted to the 4th respondent, M/s. Aranmula International Airport Pvt., Ltd., by the 1st respondent/MoEF is liable to be set aside for non application of mind of the EAC in making the approval.
147. Elaborate arguments were made by Shri T. Mohan, the learned counsel appearing for the appellant in Appeal No. 172 of 2013 (SZ), Shri Asok M. Cherian, learned counsel for the appellant in Appeal No. 173 of 2013 (SZ), Shri R. Krishna Raj, the learned counsel appearing for the appellant in Appeal No. 174 of 2013 (SZ), Shrimati Mallika Srinivasan, learned counsel appearing for the appellant in Appeal No. 1 of 2014 and Shri Harish. V the learned counsel appearing for the appellant in Appeal No. 19 of 2014 (SZ). Heard also the learned Advocate General of the State of Kerala Shri K.P. Dhandapani, appearing for the respondent No. 2 and 4, State of Kerala and the District Collector, Pathanamthitta District, Kerala State , Shrimathi C. Sangamithirai, learned counsel appearing for the 1st respondent/MoEF, Shri T.R. Rajaogpalan, the learned Senior Advocate appearing for M/s. Aranmula International 146 Airport Ltd., respondent No. 3, Shri P.S. Raman, learned Senior Advocate appearing for M/s. Enviro Care India Pvt., Ltd., 5th respondent and Shri M. Ajay, learned counsel for the Kerala State Pollution Control Board, 6th respondent. The 4th respondent, namely Kozhencherry Charitable Education Society was given up during the course of the proceedings. The Tribunal also paid its anxious considerations to the averments made in the grounds of appeals and the materials made available.
148. Point No. 1: Whether the appeals are not maintainable since the appellants are neither persons aggrieved nor have any locus standi to prefer the appeals and also on the grounds of the Tribunal not having the jurisdiction.
i) At the outset, Shri K. P. Dhandapani, the learned Advocate General of the Government of Kerala questioning the maintainability of all the appeals, would submit that the appeals are not maintainable either in law or on facts. Under the circumstances of the case, the issues raised by the appellants can be broadly classified into two broad categories. (i) Challenge is made in the appeals which would fall under the Kerala Land Reforms Act, Kerala Conservancy of Land Act, Kerala Conservancy of Paddy Land and Wetland Act, which cannot be raised and agitated before this Tribunal for lack of jurisdiction, (ii) Challenge made in the appeals would fall in Appellate Jurisdiction conferred under section 18 of the National Green Tribunal Act, 2010. The first set of appeals is outside the purview of the jurisdiction of this Tribunal and hence, they cannot be considered. In so far as the 2nd set of appeals is concerned, the appeals can be initiated only by a person aggrieved. But, the appellants are not aggrieved persons and hence, all the appeals have got to be dismissed. An aggrieved person is a person who has a legal right to enforce and whose rights are adversely affected or jeopardized. In order to 147 substantiate his contentions, the learned Advocate General relied on the decision of Ayubkhan Noorkhan Pathan Vs. State of Maharashtra, 2013(4) SCC 465. After the analysis of the various provisions of the Administrative Tribunal Act, the Hon'ble Apex Court held in Dr. Duryodhan Sahu Vs. Jithendra Kumar Mishra reported in 1997 SCC 273 that a Tribunal can be approached by a person aggrieved by an order as defined. Placing reliance on the above decision, the learned Advocate General would state that the appellants are total strangers to the proceedings in issuing the EC and did not have right under statutes to challenge the same. None of the appellants own even an inch of land in the present site and hence, all the appeals have to be got dismissed on that ground.
ii) Answering the above contention, the counsel for the appellants would submit that the appellant in Appeal No. 1 of 2014 (SZ) is Aranmula Heritage Village Action Committee while the appellants in other appeals though are individuals, all are working for the protection of natural resources and ecology of Pathanamthitta district including Aranmula where the proposed airport project is being set up. They constitute a social and environment group with the objective of working for the welfare of the local community and small land holders and have been creating awareness on environmental issues. Hence, the contention putforth by the respondents that the appellants do not own any land in that area or they did not participate in the public hearing has to be rejected. When the EC to the project proponent is likely to affect directly or indirectly, the organization or every citizen can prefer an appeal since they are aggrieved persons and hence the appellants can well maintain the appeals. Equally in so far as the contention that the Tribunal has no jurisdiction to enquire the appeals, each and every averment made in the appeals would clearly indicate that the EC has been granted for the airport project to the 148 applicant without taking into consideration the ecological impact and environmental degradation which would be caused by the project and hence, the issues to be decided in all the appeals would fall squarely within the jurisdiction of the Tribunal. Hence, the said contention put forth by the respondents' side has to be rejected.
iii) As seen above, the 2nd respondent/State of Kerala has raised two preliminary objections questioning the jurisdiction of the Tribunal to enquire the appeals apart from stating that the appellants cannot maintain the appeals since they are not aggrieved persons as envisaged under the provisions of the NGT Act, 2010. Speaking on the jurisdiction of the Tribunal, section 14 of the NGT Act, 2010 reads as follows:
"14. Tribunal to settle disputes: - (1) The Tribunal shall have the jurisdiction over all civil cases where substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such questions arises out of the implementation of the enactments specified in Schedule I. (2) The Tribunal shall hear the disputes arising from the question referred to in sub-section (1) and settle such disputes and pass order thereon".
iv) A reading of the above would make it clear that this clause confers on the Tribunal a very wide jurisdiction can cases where a substantial question relating to environment including enforcement of legal rights relating to environment is involved. No doubt, such question should arise out of the implementation of enactment specified in Schedule I of the Act. In Schedule I to the NGT Act, 2010, 7 enactments are enumerated which are:
149
1. The Water (Prevention and Control of Pollution) Act, 1974
2. The Water (Prevention and Control of Pollution) Cess Act, 1977
3. The Forest (Conservation) Act, 1980
4. The Air (Prevention and Control of Pollution) Act, 1981
5. The Environment (Protection) Act, 1986
6. The Public Liability Insurance Act, 1991
7. The Biological Diversity Act, 2002
v) Pointing to the above provisions, the learned Advocate General, Kerala State would contend that the appeals are with respect to the other State Acts such as, Kerala Land Reforms Act, Kerala Land Conservation Act, Kerala Conservancy of Paddy Land and Wet land Act etc., which fall outside the jurisdiction of seven enactments shown in Schedule I of the NGT Act, 2010 and hence, the appeals would fall outside the jurisdiction of the Tribunal. Attractive though, the argument put forth as above at the first sight, it will not stand the scrutiny of law. All these appeals as seen above have been filed challenging the grant of EC for the impugned airport project. While assailing the same on different grounds inter alia, it is averred and contended by the appellants that for the purpose of ascertaining the environmental impact, a definite idea about the nature of the land in which the proposed airport was going to be set up should have been formed. It is the specific stand of the appellants that there is a serious dispute regarding the nature of land. The project proponent purposefully has suppressed the material facts, but has placed incorrect and false information and by doing so, the project proponent did not place necessary facts enabling the EAC or MoEF to come to an independent conclusion about the environment impact. In order to substantiate their contentions, the appellants have produced various reports of the revenue officials, agriculture officers, district collector 150 and proceedings of the Taluk Land Board. Relying on those documents, the counsel for the appellants pointed out that the predecessors of the project proponent, converted a part of the proposed site illegally and due to such conversion the cultivation in the entire area adjacent to the propose site became impossible due to environmental impact caused by the reclamation of the portion of the proposed site. It cannot be disputed that the reports may and the proceedings initiated against those alleged acts are under a number of enactments like the Kerala Land Reforms Act, Kerala Land Conservation Act, Kerala Conservation of Paddy Land and Wetlands etc. It is pertinent to point out that none of these appeals has been preferred under any one of these enactments. All these appeals concentrate in challenging the EC granted in respect of the Aranmula airport project. Basing their cases on all the environmental impact if the project is allowed to be setup as per the grant of EC, it leaves no doubt that the appellants have raised substantial question relating to environment and the issues involved remain to be decided by the Tribunal and the said questions arise out of the implementation of the enactments specified in Schedule I to the Act and it will be futile to contend that the challenges are made by appellants with respect to other State laws mentioned above and hence, the contention putforth by the respondent/State of Kerala that the appeals are not maintainable before the Tribunal for lack of jurisdiction has to be rejected as devoid of merits.
vi) Equally so is the other contention that the appellants cannot maintain the appeals since none of the appeals is preferred by a person aggrieved. The NGT Act, 2010 came into force by the repealing the National Environment Appellate Authority Act, 1997 Under appeals to authority in sections 11(1) and 11(2) the reading is as follows:
151
"11. Appeals to Authority:- (1) Any person aggrieved by an order granting environmental clearance in the areas in which any industries, operations or processes or class of industries, operations and processes shall not be carryout or shall be carried out subject to certain safeguards may, within thirty days from the date of such order, prefer an appeal to the Authority in such form as may be prescribed:
Provided that the Authority may entertain any appeal after expiry of the said period of thirty days but not after ninety days from the date of aforesaid, if it is satisfied that the appellant was prevented by sufficient cause from filing of the appeal in time.
(2) For the purposes of sub-section (1), "person" means-
(a) any person who is likely to be affected by the grant of environmental clearance;
(b) ***
(c) any association of persons (whether incorporated or not) likely to be affected by such order and functioning in the field of environment;
(d) ***
(e) *** From the reading of the above provisions, any person 'aggrieved' by the EC can prefer an appeal before the NEAA within the time stipulated therein. According to Section 11(1), the word 'person' employed in Section 11(1) would mean not only 152 any person who is likely to be affected, but also an association of persons likely to be affected by such an order and functioning in the field of environment. In the instant case, both the appellants are association of persons and have been functioning in the field of environment for a long time. While so, the appellants must be able to show they are 'likely to be affected'.
By repealing the NEAA Act, 1997, the NGT Act, 2010 came into force.
Speaking of the appellate jurisdiction, Section 16 of the NGTAct, 2010 reads as follows:
"16. Tribunal to have appellate jurisdiction:- Any person aggrieved by.-
(a) ****
(b) ****
(c) ****
(d) ****
(e) ****
(f) ****
(g) ****
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under Environment (Protection) Act, 1986 (29 of 1986);
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance 153 for carrying out any activity or operation or process under the Environmental (Protection) Act, 1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of Biological Diversity Act, 2002 (18 of 2003), may within a period of thirty days from the date on which the order, or decision or direction, or determination is communicated to him, may prefer an appeal to the Tribunal;
Provided that the Tribunal may, if it is satisfied that the appellant was not prevented by sufficient cause from filing the appeal within the said period allow it be filed under this section within a further period of not exceeding sixty days.
149. Both under Section 11 of the NEAA Act,.1997 and Section 18 of the NGT Act, 2010 any person aggrieved by the grant of EC as shown above can maintain an appeal. The 'aggrieved person' as contemplated in the Act came up for interpretation before the Tribunal in a number of cases. An aggrieved person contemplated in the above provisions would refer to the substantial grievance as to denial of some personal, pecuniary or property right or imposing an obligation on a person. The grievance so ventilated should not be either fanciful or sentimental, but must be substantial. A person calling himself as an 'aggrieved' must have suffered a legal grievance that he has been wrongfully deprived of something or refused wrongfully. The aggrieved person can either be aggrieved either directly or indirectly. In so far as the environmental matters are concerned, it cannot be stated 154 that the person really aggrieved should alone be permitted to initiate an action. It is not necessary that the person, who initiates action, is a resident of that particular area wherein the proposed industrial site is located. It is true that the appellants have not participated in the proceedings of the public hearing. It is true that it is necessary to scan the credentials of the appellants as to their intention and motive. Even assuming that the appellants have not participated in the proceedings of the public hearing, they would not lose their right to challenge the approval or the EC. If the appellants come forward with a case apprehending damage and danger to environment and ecology if the project in question was not properly envisaged and did not satisfy the Principles of Sustainable Development and Precautionary Principle, they can maintain the appeal and be allowed to agitate as to the correctness of the study made in respect of ecology and environment. In the instant case, nothing substantial has been demonstrated in order to doubt the credentials of the appellants. What are all stated by the respondents is that the appellants are not residents of that area or they do not have any piece of land and hence they are not aggrieved persons. The appellant in Appeal No. 174 of 2014 (SZ), namely the Aranmula Village Heritage Action Council is an organization while other appellants are individuals. It is contended by them that they are social activists with the objective of working for the welfare of the local communities for creating awareness on environmental issues. While in the matter of ecology and environment everyone is directly or indirectly affected and also interested person in exercise of his right can prefer and maintain an appeal ventilating the grievance. It is specifically alleged that the EC granted to the project proponent is likely to affect either directly or indirectly and can prefer an appeal ventilating the grievance. Hence, the appellants are to be termed as aggrieved persons as envisaged under the provisions of the 155 NGT Act, 2010 who can maintain appeal and thus, the question is answered in favour of the appellants.
150. Hence, for the reasons stated above it is held that the appellants can well maintain the appeals and this Tribunal has jurisdiction to entertain the appeals.
151. Point No. 2: Whether the EC is to be set aside on the grounds that the EIA is prepared by an unqualified agency.
i) Criticizing strongly the EIA prepared by the 5 th respondent, M/s. Enviro Care India Pvt. Ltd., Madurai, Shri T. Mohan, counsel would submit that according to the EIA Notification, 2006, the airport projects would fall under Category A and only a duly accredited EIA consultant could appear before the EAC or prepare the EIA report. The present agency is found in Serial No. 47 of the QCI list (Annexure A-5). As per the accreditation, the 5th respondent was authorized only to conduct an EIA for Category B projects. This aspect was never considered by the 1 st respondent/MoEF while granting the impugned EC. The 1st respondent has placed reliance of the Office Memorandum dated 30.12.2012 to state that the consultants who had applied including the 5th respondent were permitted to act as consultant and certify EIA/EMP and appear before the State Level Environment Appraisal Committee (SEAC) and State Level Environment Impact Assessment Authority (SEIAA) or EAC as the case may be. But, in the instant case, the 5 th respondent/Consultant did not even apply for certification for airport category, but has applied only for thermal power projects which fact is admitted by the 5 th respondent in the reply affidavit. The present EIA report has been prepared by an organization that was not qualified to do so. In any case, Annexure A-15 filed by the applicant/consultant made it clear that the application itself was submitted only on 156 21.11.2011. Hence, it would be clear that the 5 th respondent/consultant did not make the application that resulted in accreditation for Category B projects pending during the time when the EIA report was prepared and submitted. Even the application made by the 5th respondent/consultant was also rejected. A person who has merely applied for certain sectors cannot be said to have blanket power to prepare EIA reports and appear in respect of all categories and sectors without reference to the category applied for and the consequent accreditation. Whether the consultant had prepared the EIA report for those sectors earlier had no relevance and it is open to the 5th respondent/consultant to challenge the issue as to whether the accreditation is legal or not in the present petition. It is not correct to state that at the time of presentation, there was no QCI implemented accreditation scheme. From 2009, the Ministry has imposed guidelines on preparation of EIA and presentation to EAC. The fact that the 5th respondent/consultant was found in the list of 255 applicants would not entitle him to certify the reports pertaining to the sectors unconnected to their application. It is also evident from the Annexure submitted along with the appeal memo in Appeal No. 19 of 2014 (SZ) that the application of the 5th respondent/consultant was rejected and subsequently a new application was made. Hence, the pendency of the application which was rejected cannot even be considered as a factor that would qualify the consultant to prepare the said EIA report. The EIA report prepared by an unqualified consultant cannot form basis of grant of the impugned EC which the 1 st respondent ought not to have granted and it liable to be set aside.
ii) The learned counsel Shri. Jacob P. Alex appearing for the appellant in Appeal No. 19 of 2014 (SZ) would submit that the 5th respondent/consultant did not have the competence or expertise to prepare the EIA report for the airport project. 157 Chapter XII of EIA Guidance Manual for Airports would show that it is mandatory to disclose the accreditation details of the consultants. But, in this case there was no disclosure of consultants engaged as mandated. The minutes of the accreditation committee meeting dated 08.01.2013 would show that the 5 th respondent/consultant was granted accreditation to Category B projects that too not in airport sector. Similarly, the list of experts in Annexure A-25 would show that the 5th respondent/consultant did not employ any expert who is competent to prepare the EIA report for airport projects. The scheme of accreditation of EIA consultants can apply only to a maximum of 5 sectors for accreditation. Accordingly, the 5 th respondent/consultant had already applied for 5 sectors. But, he did not apply for accreditation in airport sector.
iii) Countering the above contention of the appellant's side, the learned Senior Advocate Shri P.S. Raman would submit that the 5 th respondent/consultant was not competent to submit EIA report is incorrect and unfounded. The Hon'ble Apex Court in the judgment of T.N. Godhavarman Thirumalpad Vs. Union of India and others (2014) 4 SCC 61 delivered in the year 2013 has declared that the provision of compulsory accreditation was prospective. The concept of accreditation was suggested by the Hon'ble Supreme Court of India in Lafarge Umiam Mining (P) Ltd., Vs. Union of India (2011) 7 SCC 388 and the judgment in T.N. Godhavarman Thirumalpad Vs. Union of India and others (2014) 4 SCC 61 set out the guidelines for future cases. The Hon'ble Supreme Court of India issued directions for appointment of a regulator. But, the regulator is yet to be appointed. A perusal of the office memorandum issued subsequently on 01.11.2010, 31.12.2010 and 30.09.2011 would show that the last date of filing of the application for accreditation was extended till 31.12.2011 and all the applications submitted till then were valid. 158 The 5th respondent/consultant was registered with the QCI as a qualified EIA consultant and successfully completed two green field airports in the past at Raipur and Vadodara and they were the consultants for the construction of phase II of the Chennai airport. Therefore, the 5th respondent/consultant has experience in the field of airport projects and more particularly in Greenfield Airports. The 5 th respondent/consultant has expressly stated in the reply that an ISO certified company who has been actively involved in developing cleaner environment throughout the country, more particularly in the region since 2004. The 5th respondent/consultant is an ISO 9001 certified company having BIS accreditation and having laboratory facilities accredited by NABL and Department of Science and Technology for chemical and biological testing. The 5th respondent/consultant is having National Accreditation Board Certification for Education and Training (NABET) from QCI. It is also doing consultancy services such as EIA, EMP, Risk Assessment, Detailed Project Reports and Environmental Audit and Training and has done several turnkey projects. The 5th respondent/consultant though being adequately qualified and having satisfactorily submitted the reports in the construction of airports at Chennai, Raipur and Vadodara and various other prestigious projects, pursued their application for accreditation for Category B projects alone, more particularly for thermal projects for purely commercial reasons and it did not meant that the 5th respondent/consultant from giving a valid EIA report for a project assigned to them even before the issuance of the office memorandum introducing accreditation for the consultants. It is highly ironic and ridiculous on the part of the appellant to suggest a party who has filed to secure accreditation in Category A on merit can issue a valid report for the airport sector till December, 2011. Whereas the 5th respondent/consultant who has ample experience in the 159 airport sector and issued well within December, 2011 was not valid because for the future the 5th respondent/consultant wanted to restrict themselves to thermal power sector for purely commercial reasons.
iv) When the project proponent enquired with the AAI for guidance for appointment of an EIA consultant, the AAI for the above reasons recommended the 5th respondent/consultant to the project proponent. Even assuming while denying that there was a need for compulsory accreditation even prior to the appointment of the 5th respondent as a consultant for the project, the 5th respondent/consultant submits that the accreditation memo was not signed by a competent authority and hence, it was not binding on the 5th respondent/consultant. In as much as there existed no norms which provided accreditation, the same cannot be imposed by way of an office memorandum. The said memorandum is not even an executive instruction under Articles 73 and 161 of the Constitution of India. The office memorandum is merely a procedural formality which is directory in nature. Unless the appellant proves that the 5th respondent/consultant was incompetent and that hardship has been caused to him by virtue of lack of accreditation of the 5 th respondent/consultant for Category A projects, the contentions put forth by the appellant have to be rejected. Thus, the report of the 5 th respondent/consultant was valid and lack of accreditation was a subsequent event which has no consequence to the EIA report submitted them. Equally the 2 nd argument of the appellant's side that the EIA report is not valid since ToR was issued on 13.10.2010, the study was conducted by the 5th respondent/consultant for collecting primary data for the period July, 2010 to October, 2010 is not correct since as soon as the process for issuance of the ToR started, the project proponent engaged the 5 th respondent as the consultant and the 5th respondent started collecting samples as per the usual 160 practice. When the ToR was issued by the authority, the investigation was underway and the 5th respondent/consultant also took into account the parameters set out in the ToR prior to preparation of EIA report. Hence, no illegality was committed in the manner and conduct of investigation and the EIA report cannot be attacked on that ground. Therefore, the 5th respondent/consultant was competent to give the EIA report and the same was given by them as per the guidelines and also in good faith and the EIA report has got to be upheld.
v) All the appellants have vehemently attacked the EIA report prepared by the 5th respondent/consultant as invalid and unsustainable and in view of the same, the EAC should not have acted upon the same and granted the impugned EC. Among other grounds, the appellants have challenged the EIA as the one prepared by an unqualified agency. Admittedly, according to the EIA Notification, 2006, the airport projects fall under Category-A. From the available materials, it is seen that the 3rd respondent/project proponent has submitted the application on 02.07.2010 and the same was considered by EAC in the 91 st meeting on 21.09.2010. The ToR was finalized on 13.10.2010. According to the 5th respondent/consultant the field study was done during July-October 2010 and the EIA report was submitted as per the reply of 5th respondent/consultant in October, 2010. While the matter stood thus, the 1st respondent/MoEF decided only two consultants who had applied for accreditation till 30.11.2010 be permitted and certify the documents before SEAC, SEIAA and EAC till 30.11.2011. Office Memoranda were issued on 01.11.2010, 31.12.2010 and 30.09.2011 which would show that the last date of filing the application for accreditation was extended till 31.12.2011. While it is contended by the appellants' side that the 5th respondent/consultant was not competent and he should not be allowed to have the benefit of pendency of the application for 161 accreditation. Contrarily, the 5th respondent/consultant would submit that they were competent to prepare EIA report in view of the office memoranda of the 1 st respondent/MoEF extending the date for filing application for accreditation till 31.12.2011 and also the effect of that report till then is valid. In the instant case, the 5th respondent/consultant has prepared the EIA report, participated in the public hearing and also has appeared before the EAC which recommended the EIA report given by the 5th respondent/consultant for grant of EC for Aranmula airport project. The Tribunal is afraid whether it can agree with the contention of the 5 th respondent/consultant that it was competent to prepare the EIA report. It is not in controversy that as per the EIA Notification 2006, the airport projects would come under Category A. Needless to say that placing the projects and categorizing them as A and B should have importance and significance. Expectation of accreditation for the consultant with a view to ensure that the EIA coordinator and functional area expert is a person with sufficient skill and experience in the relevant field. It is not the case of the 5th respondent/consultant is found in serial No. 47 of the QCI list. As per the accreditation, the 5th respondent/consultant was authorized to prepare EIA reports only for Category B projects. It is true that the 1 st respondent/MoEF 255 consultants who applied for accreditation till 30.09.2011 to appear or certify documents to SEAC, SEIAA and EAC till 30.09.2011. It is also true that the last of the submission of the said applications was extended to 31.12.2011. The 5 th respondent/consultant cannot be permitted to take advantage of this permission granted by the 1st respondent/MoEF for the simple reason that the application made by the 5th respondent/consultant for accreditation was rejected on 30.09.2011 and the EAC recommended for EC on 16.08.2012. It is true that the 5 th respondent/consultant made another application on 15.12.2011 after the first 162 application for accreditation was rejected. Under the said application, the 5 th respondent/consultant sought for accreditation and was granted the same for Category B project which did not include the airport sector.
vi) As per the scheme of accreditation of EIA consultants, an EIA consultant can apply to a maximum of 5 sectors for accreditation. It is candidly admitted by the 5th respondent/consultant that though he applied for the 5 sectors, his application did not include airport projects. The only explanation tendered by the 5th respondent/consultant is that in view of commercial reasons he did not apply for accreditation for airport sector though he has sufficient experience in the field. This explanation cannot be accepted even for a moment. Admittedly, the 5 th respondent/consultant has not applied for accreditation for airport projects falling under Category A. Mere pendency of an application for accreditation for Category B projects would not cloth him with a right to make a study, field survey and preparation of EIA reports in respect of the airport projects which according to notification is categorized as Category A. If this contention has to be accepted, the very purpose of importance and significance of placing airport projects under Category A itself would be defeated. It is contended by the 5th respondent/consultant that the guidelines manual is only recommendatory and not mandatory. But that is not the case in so far as EIA Notification, 2006 is concerned. Much was contended by the 5th respondent/consultant that he has completed studies on two green field airports at Raipur and Vadodara and he was the consultant for the construction in phase II of Chennai airport and his experience in the field would speak volumes of his competence. This contention has to be rejected for two reasons. Firstly, the competence of the 5 th respondent/consultant has to be tested from the view point of EIA Notification, 2006 which governs the 163 field. While airport project is categorized as A to which neither the 5 th respondent/consultant has applied for nor was granted any projects under Category A and in particular the airport projects. On the contrary, he applied twice and obtained accreditation only for the projects under Category B. Hence, he is incompetent. Secondly, in so far as the alleged experience of the 5th respondent/consultant is concerned, there are no materials placed before the Tribunal to indicate the nature of works that was undertaken by the 5 th respondent/consultant in respect of the three airport projects. Even assuming that the 5th respondent/consultant had experience, that would not qualify him as a competent consultancy agency in view of the mandatory provisions of the EIA Notification, 2006. Hence, it has got to be held that the 5 th respondent/consultant was not competent to make a study and prepare an EIA report for the airport project. As rightly pointed out by the appellants, the EAC at the time of meeting never considered this vital aspect of the matter, but has recommended for the issuance of EC. This would certainly shake the very bottom of the recommendation made by the EAC since it was based on the EIA report given by the 5 th respondent/consultant, an incompetent agency.
152. For the discussions made above, it is held that the 5 th respondent/consultant was not competent to prepare the EIA or appear before the EAC in respect of the Aranmula airport project.
153. Point No. 3: Whether the Form I submitted by the 3rd respondent/project proponent suffers due to inadequacy and false statements.
i) The contentions put forth by the appellants' side that the proposed site for Aranmula airport is a wetland is not correct both factually and legally. According to 164 Section 2(g) of the Wetland (Conservation and Management) Rules, 2010 'wet land' means ......"an area of marsh, fen, peat land or water; natural or artificial, permanent or temporary, with water that is static or flowing, fresh brackish or salt, including areas of marine water, the depth of which at low tide does not exceed 6 meters and includes all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks, estuaries and manmade wet land and zone of direct influence on wet lands that is to say the drainage area or catchment region of the wet lands as determined by the authority, but does not include many river channels, paddy fields and the coastal wet land covered under the notification of the Government of India in the Ministry of Environment and Forest, S.O. number 114(E) dated the 19 th February 1991 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub Section
(ii) of dated the 20th February 1991." . The Wet Land Conservation Management Rules has been notified by the Central Government as per the Gazatte Notification No. GSR 951(F) dated 04.12.2010 to enhance the wetland conservation and management efforts in the country. These rules have beeen issued in exercise of powers conferred by Environment (Protection) Act 1986. As per Rule 8(2) of the Rules, the State Government had designated the department of environment and climate change as the nodal agency for regulating the use of wetlands in the State as per GO (Rt) No. 51/11/Envt. Dated 30.05.2011. As per Rule 6(2) of the Wet Land (Conservation Management) Rules, the State Government shall prepare within a period of one year from commencement of rules, a 'brief document' identifying and clarifying the wetlands within their respective territories in accordance with the crieteria specified under Rule 3. Rule 3 stipulates those wetlands which shall be regulated under the rules and their classifications. Therefore, by virtue of notification dated 30.05.2011, the department of Environment and Climate Change has 165 prepared an inventory by incorporating the guidelines such as geographical dealiation of wetlands, demarcation on the basis of the zone of influence along with proper maps, calculated the size of the wetland and given an account of preexisting rights and previleges consistent or not consistent with the ecological health of the wetland. It is worthwhile to mention that proposed project site for which the environmental clarfication has granted is not a wetland as per the inventory prepared under the Wetland Conservation Management Rules 2010. The Project site is only a paddy land which is now waterlogged and degraded and which is lying as unfit for paddy cultivation for the past so many years. It is also worthwhile to point out that EC has been issued after considering all the relevant facts and circumstances of the environmental issues. It was further contended by the learned Advocate General that in as much as the Appellants contented that the site is wet land they tried to mislead the Hon'ble Tribunal. Concealment of material facts amounts to suppression of facts which is actually abuse of process of the Tribunal. In such an event, as held by the Hon'ble Supreme Court in K.D. Sharma v. SAIL, 2008(12) SCC 481, that if there is no candid disclosure of relevant and material facts or the Petitioner is guilty of misleading the Court , his petition may be dismissed at the threshold.
ii) State of Kerala supports the Project for several reasons including the job opportunities it can provide. Therefore, the State Government as a policy supports the project and wanted the project to be finished in a time phased manner. A balance has to be struck down between public opinion, national policy, economic growth and apprehension. A balance has to be struck down between public opinion, national policy, economic growth and apprehension, however legitimate it cannot override the justification of the project as held by the Hon'ble Supreme Court in G. Sundarrajan vs. Union of India, 2013 (6) SCC 620.
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iii) The Project Proponent has taken every care and caution to protect and preserve the natural habitat, flora and fauna, rivulets and such other natural features, in the best possible form, with least interference during the implementation of the Airport Project. The Government of Kerala after evaluating the whole project in toto, developmental contribution, employment potential, better connectivity and nature friendly had taken 10% stake in this Greenfield Airport Project. This by itself speaks about the essentiality and importance of this Airport to the State of Kerala. Some factual mistakes in the report of the Salim Ali foundation are worth noting. The report says that there are extensive wetlands in the village. But there is no identified wet land in Aranmula Village as per the Report of the Centre for Earth Science Studies (CESS). As the definition of the Kerala Conservation of Paddy and Wet Land Act, 2008, paddy Land is not wet Land. The provisions of Central Wet Land Act are also similar. Therefore, it seems the authors of the Report of Salim Ali Foundation have confused Paddy Land with Wet Land. This Respondent had purchased the land in a developed state and most of the lands are lying as water logged fallow land, dry land and rubber plantations. The Company has purchased certain lands, which was already converted prior to enactment of Conservation of Paddy Land and Wet Land Act, 2008. The Prior owner Kozhencherry Charitable Educational Society owned 232 Acres of land spread over in three villages- Aranmula, Mallapuzhassery and Kidanganoor Villages in Pathanamthitta District. If the land was converted prior to enactment of Act, nature of property cannot be looked into taking into consideration of ground reality existing. The legal position remains settled through various decisions of the Honourable High Court of Kerala. As per the Wetlands (Conservation and Management) Rules, 2010, List of wetlands in India identified as Ramsar Sites under Ramsar Convention on Wet Land, wherein no portion of the 167 Airport Project has been identified as "wet land" in the appended Schedule. Moreover, there is no protected Wetland in the Project area as per the said Rules.
iv) The project proponent required filling the bare minimum area required for safe airport operation, leaving the remaining area in its natural form, there will be no environmental impact due to this activity. The recharge also remains unaffected. The soil required for this filling is calculated as under; 1000x150x1 = 150000 m 3 of soil. On the whole, the minimum filling with the local material ensures environmental homogeneity and produces no impact on environment. Paddy lands can be reclaimed for public purposes as per the provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008. Instead it has become a degraded land with water logging and invasive plant species affecting native bio diversity. The project site has no ecological or geographical significance other than it was a paddy field more than 20 years ago, and now a fallow water logged land unfit for paddy cultivation, as is evident from the report of Principal Agricultural Officer, mentioned in Page Nos. 71-
75. The report shows the tragic situation in the area where not even 5 cents of the paddy land could be made under paddy cultivation. As per the Act, paddy land does not include wet land. Certain areas of the paddy field are lying as fallow and certain fallow land is lying as degraded water logged area. In Annexure A -XXIII, petition of the Land Owners' Association, the true situation of the project area is stated that "it is flourishing with mosquitoes, leeches, pythons and in the locality skin affections in the people have made life very difficult. There are many instances of leeches entering the nostrils of cattle resulting in their death. If the project complies with the condition in environment clearance, it could be executed whereby water logging can be removed, the remaining paddy fields restored, and the rivulet could be rejuvenated. A paddy land, which is not cultivable, cannot be left unutilized and would not ensure 168 to benefit of either the State, the parties or the public and not at all advance the avowed objective of preserving the environment and maintaining ecological balance.
v) In answer to the above the learned Senior Advocate would submit that the contentions made by the appellants side relating to the Aranmula Parthasarathy temple and the mast and rituals thereon are unfounded. The project will not have any effect in the rituals as contended by the appellants' side. Famous temples such as the Devi Temple at Sanghumukham and Sree Padmanabha Swamy Temple are in the close vicinity of Thiruvananthapuram Airport. The 'Arattu' Possession of Sree Padmanabha Swamy Temple is through the Airport. There are many Airports in India where Temples, Churches, Masjids and other places of worship are located directly below the flight path (Approach funnel) of airports, and aircraft are regularly flying over such places of worships. KITCO had conducted feasibility report (project report) about the Airport Project. This study was supplemented by a comprehensive and mandatory obstruction study by M/s Aero Survey, G-11, Second Floor, Green Park Extn, New Delhi who is a recognized agency for conducting Obstacle Study for Airport Project by Civil Aviation, Airport Authority and DGCA. In page 5 of their Obstacle Study Report they have also noted the following obstructions with remedial measures whereby it was suggested to displace the threshold of the runway by 285 meters due to the presence of flag mast of Shree Parthasarathy Temple. Airport Officials visited the site and had discussions with the Company on the obstacle Survey and Company agreed to displace the threshold by 285 m so as to protect the rich heritage and sanctity of the Temple. This project will bring glory to the Temple.
vi) Attacking the contentions made by the counsel for the appellants to the effect that the project proponent has made false statements regarding the site 169 pending litigations against the project, at the time of submission of the application, the learned counsel for the respondents would submit that they were absolutely false. The project proponent placed basic information on 26.10.2010. It was clearly stated that the project proponent has already purchased the land in a developed state and most of the lands are lying as water logged fallow land, dry land and Rubber Plantations. The project proponent purchased a part of the lands, which was already converted prior to enactment of Conservation of Paddy Land and Wet Land Act, 2008 and hence, they conversion cannot be attacked with the aid of the provisions of the enactment. It is pertinent to point out that no portion of the airport project was identified as wetland. Moreover, there was no protected wetland in the project area as per the rules. It cannot be disputed for the pending litigation against the project proponent/3rd respondent at the time of submission of the application in Form I. There was no local land use plan and there was no zonal classification in the airport area and hence, the land could be used only for airport project with strict adherence to the conditions attached to EC. This airport project area has been declared as an industrial area by the Government of Kerala. Hence, the statement made by the project proponent/3rd respondent is falsely interpreted by the appellants to suit to their convenience. There is no need for any further reclamation as the Project area has been purchased in a developed state. There was no need for any reclamation work in this Project. Most of the Project sites were in a developed form/Rubber Plantation and dry Land. Aranmula, Pathanamthitta District is connected by a good network of State highway roads. These roads have two-line riding surface of minimum 35 ft with adequate space for future expansion on the sides. Good connectivity from Alappuzha, Kottayam and Idukki Districts exists towards Pathanamthitta District. It was more clear that minimum number of vehicles 170 for transporting raw materials. The same would not affect the existing traffic movement and hence, there is no need for any new road or other transport infrastructure during construction or operation or widening of the existing roads.
vii) There was no need for any impoundment, damming or culverting, realignment or other changes to the hydrology of water course or aquifers. Airport land is interspersed with a small rivulet 'Kozhithodu" which is crossing the runway. This rivulet eventually merges with the famous Pampa River. A cross vent of 20 x 2.5 m underneath the runway is planned to maintain free flow of water in Kozhithodu. General lay of the land is towards Kozhithodu from South and North which facilitates free flow of water from both ends of run way towards Kozhithodu and the proposed drain. The project proponent has thoroughly examined all the minor channels/canals/streams/rivulet in and around the project site and has taken due precaution to protect and preserve water flow so as to ensure free flow of accumulated water and preservation of water table in the area.
viii) The statement regarding flora and fauna are made according to the whims and fancies of appellant by which they attempted to false acquisition. The same is vague and unscientific without mentioning specific flora and fauna probably to be affected. As per the Tropical Botanical Centre and Zoological Survey of India, there are no specific studies regarding flora and fauna conducted in Pathanamthitta District. The EAC would list out a few cases for consideration during its sittings which were for two to three days continuously and every environmental aspects associated with the project would be discussed in detail before recommending sanction. The ToR are based on the actual state of facts and on ground reality and based on which, EIA was prepared in true sense. After hearing and perusing documents, video 171 and other connected records, EAC of MoEF recommended the project for environmental clearance to the 1st respondent vides its minutes dated 16.12.2011 and again recommended the project for EC in its minutes dated 17.08.2012. Thus, the project was cleared twice by the EAC and the matter was referred to the 1 st respondent/MoEF for final clearance. Thus, the contentions putforth by the appellants are totally false and frivolous. A reading of the impugned order EC would indicate that it is a speaking order and considering all the pros and cons of the environmental impact and after due consideration of the relevant documents submitted by the 3rd respondent, project proponent and additional clarifications furnished in response to its observations. Only after doing so, the EAC has recommended for the grant of EC for the project as per the provisions of EIA Notification, 2006 and its subsequent amendments, subject to strict compliance of the terms and conditions as envisaged in the impugned order. The 3 rd respondent/project proponent undertakes that they would comply with the specific conditions envisaged in the EC in letter and spirit. The purpose regarding the sensitive man-made land uses, like hospitals etc., are to be interpreted as items directly or indirectly affecting the operation of the airport. It is necessary to identify the presence of such obstructive structures, for which the 3rd respondent/project proponent has separately conducted obstruction study before embarking on the project, after the submission of the basic information. This would complement the application. The aerial distance is for the purpose to identify any man-made structures like hospital that would interfere with the operation of the airport. This study was conducted by a comprehensive and mandatory obstruction study by M/s Aero Survey, New Delhi, who is a recognised agency for conducting the said study. 172
ix) In so far as the vigilance enquiry ordered by the Court of Enquiry Commissioner & Special Judge (Vigilance), Kottayam is concerned, it has been stayed by the Hon'ble High Court of Kerala in Crml M.A No. 318/2014 in Crl MC No. 247/2014.
x) Answering to the contentions put forth by the appellants in respect of sustainable development and precautionary principle, the learned counsel would submit that if both the doctrines are applied to the present factual position of the case, the EC attached with necessary conditions has to be upheld. The 3 rd respondent hereby undertakes that he would follow the specific conditions laid down in the impugned order and will be a touchstone of sustainable development and its impact on ecology has been taken care of following all national and international principles. While balancing the benefit of establishing airport, if the 3 rd respondent strikes a balance, such infrastructure facilities are of extreme importance for the economic growth of the country, alleviate poverty, generate employment etc. While setting up of a project of this nature, the 3 rd respondent have taken into account an overall view of larger public interest rather than unsustainable objections and allegations raised in this appeal and there is no violation of Article 21 of the Constitution. The hue and cry raised by the appellants about the possible impact of environment was fully addressed by the 1 st respondent/MoEF in their impugned order. This airport project shall be on the concept of welfare and safety for the purpose of development. The employment of potential-skilled, semi-skilled and unskilled labour both during construction and operational phases of the project with specific attention to employment potential of local population is necessary for this airport Project. Socio-economic benefits of the Project mainly include provision of additional Revenue generation, triggering growth in the region, provisions of 173 additional employment, development of ancillary industries and trade centres, improvement in quality of life etc. Needless to say, it has to be totally guided by the conception of public safety and welfare of the citizens. The term "welfare" is always related to the living generation and generations to come. Promotion of development and Protection of development are to be harmonized at the same time. By applying the principles of sustainable development, the impugned order is a balance between the developmental needs and the environmental degradation.
xi) It is quite evident from the available materials, the 3rd respondent/project proponent, while making an application for the airport project in Form I has provided false data about the ecology in the area, resources to be used and overall impact on the environment and presence of wetland or forests. Along with the feasibility report, Form I was submitted by the 3rd respondent/project proponent on 28.06.2010. In that said Form I, the following are noticed:
1. Basic information under item No. 1.0, Sl. No. 22 states "Whether there is any Government order/policy relevant/ relating to the site. The answer given was "N.A" which means Not Applicable. On that day, when such information was given, there was a declared policy and a statute passed by the Legislature of Kerala to protect paddy lands and wetlands of the State. The Kerala Conservation of Paddy Lands and Wetlands Act, 2008 was specifically passed to for that purpose.
2. There is a Government order, namely Kerala Land Utilistion Order, 1967 which prohibits conversion of paddy lands without prior sanction of the Government. The project proponent has stated the whole of acquired land shall not be reclaimed and rest of the land other than that used for 174 construction of runway including wetlands, paddy lands etc., shall be protected to the maximum extent. Here is an admission made by the project proponent, that the project site included paddy land and wetland and thus this was under the clutches of the above order/statute on the day when the Form I was filed. But, this fact was suppressed by the project proponent.
3. In sector 'basic information' under item No. 1, Sl. No. 24 to the question, " Whether there is any litigation pending against the project and/or land in which the project is proposed to be set up (a) Name of the Court, (b) Case No. (c) Orders/directions of the court, if any and its relevance with the proposed project", the answer given by the project proponent was "N.A.". A Division Bench of Hon'ble High Court of Kerala has already directed the owner of the land that the filling of the paddy land and wetlands should be done only in accordance with law and only after getting necessary statutory clearances from the authorities concerned. For illegal filling of paddy lands by the predecessor as well as the present project proponent, a number of cases were registered in respect of encroachment of public land, public streams, filling up of paddy lands etc., All these information were suppressed.
4. Under sub-heading 'Activity' in item No.2, Sl.No. 1.1, it is stated that there is 'no' permanent or temporary change in the land use, land cover or topography including increase in the land use. Admittedly, the project area included paddy land and wetlands. Needless to say, construction of airport and other facilities, would cause a permanent change in the land use.
5. Under the sub-head 'Activity' in item No. 2, Sl.No.1.10, the project proponent has stated that there was no reclamation work in the project site; this cannot 175 but be false since it is admitted by the project proponent that there was reclamation of paddy lands and wetlands.
6. Under the sub-head 'Activity, item No. 2, Sl. Nos. 1.17, 1.18 and 1.19, the project proponent has declared that there will be 'no' new road or other transport infrastructure during construction or operation, there will be 'no' closure or diversion of existing transport routes or infrastructure leading to changes in traffic movements. No doubt, the operation of the airport would definitely increase the traffic and without widening the existing roads no airport operation can be done.
7. In item No. 2, Sl. No.2.1, the project proponent has stated that there is 'no' land especially underdeveloped or agricultural land. This information is a concealment of the fact that part of the project site is agricultural lands.
8. Under sub-head 'Environmental Security' in item No. 10, Sl. No. 2, the project proponent has declared that there is only River Pampa and that too situate at a distance of 2 km away from the project site. Admittedly, there are vast areas of wetlands in and around the project site which was acknowledged by the project proponent and recorded in the minutes of the public hearing.
9. Equally, in item No. 10, Sl. No. 9, the project proponent has declared that there were no lands occupied by the sensitive manmade land uses like hospitals within 15 km aerial distance from the proposed project location boundary. Admittedly, the Aranmula Parthasarathy temple is situate at 100 m away from the project location boundary. Thus, while filing the Form I along with the application, the project proponent has not only suppressed the existing true state of affairs, but also furnished false information in order to obtain EC for the project.
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The following environmental issues related to airport project have not been addressed in the EIA report.
I. AIR
i) Prediction of emissions from combustion of aviation fuel (unburnt fuel droplets are a source of volatile organic compounds and give rise to odours) and their impact in the zone of influence.
ii) Vehicular emissions inside the airport and from ground service equipment (tugs for aircraft and baggage, fuel and catering Lorries, buses and vans that transport passengers etc.).
iii) Prediction of VOC emission from fuel storage tanks and transfer facilities and its management
iv) Impacts of pollution from Aircraft and airfield maintenance activities
v) 5. Airport activities and Climate change II. BIOLOGICAL
i) Habitat loss and habitat degradation due to 'changed' and 'different' activities in the zone of influence.
ii) Bird strikes/hits- prevention and management plan (Measures to control birds also extend beyond the airport boundary)
iii) The sensitivity of wildlife and local domesticated animals to the noise of aircraft, airport ground operations and airport access roads.
177 III. NOISE
i) Prediction of Noise from aircraft and from traffic going to and from airports - modelling studies. Mitigation of effects and management.
ii) 2. Prediction of noise generated from taxiing aircrafts, the application of reverse-thrust (an optional braking aid on landing), engine tests and on-site vehicular traffic.
Mitigation of effects and management
iii) It is true that the ToR issued for the EIA study do not include the above. Notwithstanding this fact, the EIA consultant who claims long experience and expertise in the field should have addressed these issues. Undoubtedly, these issues deserve attention and analysis. Such an approach would have served the cause of environmental management at large.
154. Hence, it is held that the Form I in the application filed by the 3 rd respondent/project proponent before the 1st respondent/MoEF for the Aranmula airport project was inchoate and invalid for false and suppression of materials and for inadequacy.
155. Point No. 4: Whether the impugned EC is liable to be set aside on the ground that as the public hearing was not conducted as per the mandatory provisions of the EIA Notification, 2006.
i) Advancing the arguments on behalf of the appellants, the learned counsel 178 would submit that the public hearing is mandatory and it should be strictly in accordance with the procedure specified in EIA Notification, 2006. In the instant case, the 3rd respondent, the project proponent has neither conducted the public hearing in accordance with law nor in a proper manner. The access to the site of public hearing was not facilitated by the project proponent or other stake holders. As a result, a majority of the people who are likely to be affected due to the setting up of the project, namely the airport were not provided an opportunity to voice their grievances. The 4th respondent applied on 02.02.2011 for conducting the public hearing, but the alleged publication in the dailies did not contain all required information as mandated by Appendix-VI of the EIA Notification, 2006. Even on that date, the EIA report was not made available for viewing or posted in the website. The public hearing was originally scheduled on 10.03.2011 and was rescheduled to 29.04.2011 and again to 10.05.2011. But, the change in the date of public hearing on 29.04.2011 and 10.05.2011 was not publicized. This fact also was borne out from the minutes of the public hearing conducted on 10.05.2011. This is in clear violation of EIA Notification, 2006 as the EIA Notification under clause 3.4 of Annexure IV clearly states that the procedure in clause 3.1 has to be followed in case of postponement. It is seen that the time difference between the postponed dates was not 30 days which is the minimum mandatory time provided and the answer given by the respondents that the period of time between the postponement was less than 30 days and hence, the postponement was not publicized cannot be accepted since this led to a situation where the public was prevented from participation effectively in the public hearing process. The minutes of the public hearing would indicate that only 26 persons were able to effectively participate in the hearing which can hardly be called participative and democratic. The tenor of the serious protests held by the people of 179 the area was not reflected in the public hearing minutes and thus, this is violation of law by denying effective participation of the people directly affected by the project. Apart from that the public hearing was neither conducted at the project site nor anywhere in the close proximity, but a distance of more than 15 km from the project area and from the villages affected. The fact that only 80 people participated in the hearing of a project of this magnitude is indicative of both inconvenience caused by the venue and lack of adequate publicity for the same. In order to substantiate their contentions, the learned counsel relied on the judgment of Hon'ble Gujarat High Court reported in (i) Centre for Social Justice Vs. Union of India and others (AIR 2001 Guj.71) and (ii) S. Nandakumar Vs. The Secretary to Government, Tamil Nadu in W.P. No. 10641 of 2009 and etc., dated 22.04.2010. The above judgments clearly described the importance of the public hearing in the clearance process and the facts of the present case makes it evident that the entire process was farce. The 1 st respondent/MoEF has not considered any of the facts in the impugned clearance in view of the violation of mandatory provisions in respect of the public hearing; the EC has got to be set aside.
ii) Arguing for the respondents' side on the question of above issue, the learned counsel for the respondents would submit that the public hearing in respect of the project in question was convened and conducted in accordance with the EIA Notification, 2006. As per the EIA Notification, 2006 and as per Annexure IV, the public hearing should be completed within a period of 45 days from the date of receipt of complete documents as required in paragraph 1. The total number of days as per the said schedule is 90 days for completing the Process vide Notification dated 04.02.2011 and written comments are sought within 30 days of the date of publication or to participate in public consultation. The date of first public hearing was 180 fixed on 10.03.2011 and by the letter dated 07.03.2011 a direction was issued by the Chief Electoral Officer to defer the public hearing and by another letter it was directed to be conducted after 13.04.2011. The date of 2 nd public hearing was scheduled to 29.04.2011 and adjourned due to hartal. Notice of publicity was made. The public hearing was actually conducted on 10.05.2011 and 2 copies of the minutes of the public hearing were addressed to the MoEF by the Kerala State Pollution Control Board. It is pertinent to note that the time period for completion of public hearing was 45 days and for the first public hearing, 10 days time was given. The period of election process has to be excluded to comply with the 45 days period. The public hearing was conducted on 10.05.2011 and hence there was no violation in so far as the notice period is concerned. Equally in so far as the place of public hearing is concerned, the contentions put forth by the appellants side are baseless, since after giving wide publicity through print and public media including hoardings, newspaper advertisements etc. The public meeting was conducted at the District Collectorate, Pathanamthitta district. It cannot be disputed the District Headquarters (Collectorate) is centrally located at Pathanamthitta, which is about 10 Km from the Project site and people from the Airport locality can reach the Collectorate within 15 minutes by bus and 10 minutes by car. The public hearing was conducted by the State authorities in compliance with the requirements of the EIA Notification, 2006 and hence, the contentions put forth by the appellants are devoid of merits.
iii) The learned counsel appearing for the 6th respondent, namely the Kerala State Pollution Control Board would submit that the project proponent, the 3 rd respondent, requested the Kerala State Pollution Control Board (KSPCB) to organize the public hearing as part of the Environmental Clearance Process for their project on 02.02.2011 along with sufficient copies of the draft EIA and Malayalam and 181 English version of its executive summary. In consultation with the District Collector, Pathanamthitta, the public hearing was fixed at 11.00 am on 10.03.2011 at the conference hall of the District Collectorate at Pathanamthitta. The time and venue was fixed considering the lack of adequate facilities near the proposed airport and the convenience, facilities available and ease of travel to the District Collectorate, Pathanamthitta. The publications regarding the time, date and venue of the public hearing were made on 06.02.2011.
iv) However, due to the declaration on 01.03.2011 of the elections to the Kerala State Legislative Assembly on 13.04.2011, the date of public hearing had to be rescheduled by the District Collector with approval from the Election Commission. The public hearing was postponed to 29.04.2011 and publication was made in the same dailies on 27.03.2011 about the new date of public hearing at the same time and at the same venue as earlier notified. On account of a sudden call for hartal in Pathanamthitta on 29.04.2011, the public hearing had to be postponed further and it was decided to hold it on 10.05.2011 at 11.00 AM at the Conference Hall of District Collectorate, Pathanamthitta. This postponement was also published on 28.04.2011 in the same dailies. There have been no complaints made by anyone regarding the public hearing and its postponements at any time before these appeals have been filed before this Tribunal. Neither the appellant before this Tribunal nor anyone else had approached the KSPCB stating that they needed additional time to file their objections, collect materials etc., Neither were there any complaints made whatsoever by anyone that the venue fixed for the public hearing was inconvenient, unsuitable or against the norms prescribed. These allegations have been raised for the first time at the appellate stage by appellants who had not even participated in the public hearing process.
182
v) In the EIA Notification, 2006 issued by the Government of India, Clause 7 deals with the stages in the Prior Environmental Clearance Process. Stage III deals with Public Consultation. A reading of the above would make it clear that one of the components is that the public hearing should be held in the vicinity of the project for ascertaining concerns of local affected persons and the other component is obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project. 30 days time is mandated for "other affected persons" to send in their responses and not for "local affected persons" to attend the public hearing as argued by the appellants. The provisions under Clause 3.1 stipulates that the Member Secretary of the KSPCB shall finalize the date, time and venue of the public hearing and advertise the same in one major national leading and one regional vernacular daily. Thereafter, it is provided that a minimum notice period of thirty days shall be provided to the public for furnishing their responses. Clause 3.3 stipulates that the postponements of date, time and venue if necessitated shall be published in the same national and regional dailies. The provisions under Clause 3.4 stipulate that the postponements shall be notified afresh as per the procedure under Clause 3.1. It is therefore clear that what is provided in the notification of 2006 is that the public hearing shall be conducted for ascertaining the views of the local affected persons and a minimum time of thirty days shall be given for other concerned persons to file their responses. Clause 3.4 does not mandate that in the case of postponement a further period of thirty days has to be granted for the public hearing. It only stipulates that if there is postponement of time, venue and date it shall be published in the same manner as provided in Clause 3.1, namely publication through the same dailies which originally published the notice. In the instant case a total of 85 days was available for any concerned persons to file their 183 written responses while the Notification only prescribes a minimum period of thirty days for such objections. The period of thirty days if not remotely intended for anyone to make travel plans to the venue of the public hearing which in this case was in the same District at the District Headquarters in Pathanamthitta under fifteen kilometers from the Project site and very well connected to and from the vicinity of the Project site and from elsewhere. This is in conformity to Clause III (ii) (a) which stipulates public hearing at the site or in its close proximity, district wise. In the instant case, the public hearing was conducted in the same District at its Headquarters. The KSPCB also factored in the stipulation of time limits to complete the public hearing as set out in the Notification. If the KSPCB was found wanting, the Regulatory Authority has ample powers reserved to conduct the public hearing through any other agency as provided in Clause III. (iv) of the Notification. The fact that the procedure adopted by the KSPCB was not found fault with by the Regulatory Authority leads further credence to the legality of the public hearing process adopted by the KSPCB. Having not complained about the inconvenience or prejudice suffered by the appellants at any time before, such contentions are raised now and hence, this contention put forth in respect of the public hearing conducted by the KSPCB deserves to be dismissed.
vi) The issues and concerns raised during the public hearing were actually noted in the minutes of the meeting and all such issues and concerns were answered satisfactorily by the project proponent. Only after carefully examining and after obtaining necessary additional information, final EIA, minutes of the public hearing and due deliberations, the EAC recommended for the EC and after considering all parameters, the 1st respondent/MoEF granted EC subject to certain environmental safeguards. The MoEF, after making a thorough scrutiny of the EAC 184 report and also all the materials made available and satisfied that it was a fit case for granting EC. Accordingly, the 1st respondent/MoEF issued the EC in favour of the 3 rd respondent/project proponent for setting up the airport project. Hence, the appeals have to be rejected as devoid of merits.
vii) It is specifically pleaded case of the appellants that the public hearing conducted in respect of the impugned airport project of the 3 rd respondent/project proponent was not in accordance with law and hence the EC is liable to be set aside on that ground. Contrarily, it is contended by the respondents that the public hearing was conducted strictly in accordance with law. The EIA Notification, 2006 on the public hearing mandates as follows:
"3.3. No postponement of the date, time, venue of the public hearing shall be undertaken, unless some untoward emergency situation occurs and only on the recommendation of the District Magistrate, the postponement shall be notified to the public through the same national and regional vernacular dailies and also prominently displayed at all the identified offices by the concerned State Pollution Control Board or Union Territory Pollution Control Committees."
Clause 1.0 in Appendix IV of the notification clearly lays down the guidelines in relation to the conduct of public hearing as follows:
"The public hearing shall be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site(s) or it its close proximity, district wise by the concerned State Pollution Control Board or the Union Territory Pollution Control Committee." 185
Apart from the above, the project proponent should give copies of the draft EIA report with generic structure given in Appendix III including the summary of EIA report in English and in the local languages prepared strictly in accordance with the ToR after scoping.
156. As could be seen from the available materials made available by the 5th respondent/project proponent, a notice of public hearing was published on 06.02.2011 announcing the date as 10.03.2011. On 10.03.2011, it was informed by the District Collector, Pathanamthitta that the hearing was adjourned to 29.04.2011. Even on 29.04.2011 also, the public hearing was not conducted. Admittedly, the public hearing was conducted on 10.05.2011.
157. A careful scrutiny of the available materials would clearly indicate that the public hearing conducted on 10.05.2011 was not in accordance with law and has to be declared as invalid in the eye of law for more reasons than one
158. Appendix IV of the EIA Notification, 2006 as seen above specifically mandates that the public hearing should be arranged in a systematic, time bound and transparent manner ensuring widest possible participation. The words 'widest possible public participation' are of wide import and necessarily include people who are likely to be affected by the environmental degradation due to the proposed airport project to be setup at Aranmula. At the very least, the public hearing should include the people living within the study area. Needless to say, the exclusion of people within the study area from effective participation is contrary to the EIA Notification, 2006. This position is emphasized by cardinal judgments of the Hon'ble Apex Court and other higher Courts speaking on the principles of sustainable development and precautionary principle. In the instant case, no material is 186 available to indicate the issuance of any notice or information that the public hearing was to be conducted on 10.05.2011 though it is claimed that it was published in the newspapers. Materials of the public hearing in the instant case would show that only 80 persons participated in the public hearing and the entire proceedings were concluded within two hours. Admittedly, the public hearing was conducted at the Collectorate, Pathanamthitta which is situate at a distance of 15 km from the project site. Concedely, the public hearing on 29.04.2011 was postponed to 10.05.2011 on which date the public hearing was conducted. This would clearly indicate that it is in violation of EIA Notification, 2006 in respect of the mandatory time required to hold public hearing even in a case of postponement from the original date as per Clause 3.3. of Annexure IV of the EIA Notificaion, 2006 as read above.
159. Thus, from the above position it is clear that the EIA Notification, 2006 mandates even in the case of postponement of the date, the procedure as laid down in Clause 3(1) has to be followed, which would mean that the time interval between the announced date and postponed date should be 30 days. Thus, the minimum mandatory time of 30 days should be provided. But, in the instant case, the date of public hearing from 29.04.2011 was postponed to 10.05.2011 which is in violation of the mandatory provisions. Thus, it would be quite clear that instead of taking measures for the public to participate effectively in the public hearing process, the public has been prevented from participating in the public hearing process to voice their concern and place their objections on the environmental issues by not following the mandatory procedure. It is a case, where there were serious protests held by the people of that area. The procedure followed in the instant case by not following the mandatory provisions in respect of place and notice, the public was denied and deprived of effective participation in the public hearing and the same 187 would vitiate the proceedings and this can also be added as a ground to scrap the impugned EC.
160. Therefore, it is held that the entire public hearing proceedings is vitiated in view of violations of mandatory procedure as envisaged in EIA Notification, 2006.
161. Point No. 5: Whether the EC granted to the 4th respondent, M/s. Aranmula International Airport Private Limited by the 1 st respondent/MoEF is liable to be set aside for non application of mind of the EAC in making the approval.
i) Advancing the arguments on behalf of the appellants Shri T. Mohan, the learned counsel would submit that the EIA report contained, incorrect, false and misleading data, but the same were accepted by the 1 st respondent/MoEF which resulted in granting the impugned EC. The non application of mind and lack of diligence both on the part of the EAC and the MoEF/1st respondent is clear from the materials placed by the respondents. The available materials would clearly indicate that the EAC at all stages during the consideration of the project in question was overburdened and over extended by having to consider scores of projects during each of the meetings. During the meeting on 21/22.09.2011, the present project figured as item No.4.42. The EAC considered 4 old projects, 45 new projects, 5 recommended projects and one other item. On 15/16.10.2011, the present project is shown as item No. 3.2. In that said meeting, the MoEF considered 4 old projects, 15 new projects, 4 extra items and 12 recommended projects. During the meeting, the instant project was provisionally cleared subject to compliance of 3 conditions mentioned therein. In the meeting held on 16-17th August, 2012, the EAC considered more than 50 proposals. There is nothing to indicate whether any sub committee was formed to consider this controversial project in teeth of several serious 188 allegations against the project proponent in the interregnum between the EAC meetings. This would be indicative of the fact that the EAC could not have considered any project with required diligence since they were functioning under severe constraints. The EAC has not taken note of the fact the project proponent had provided different claims even on data collection. At page No. 9 of EIA, it was claimed that the baseline data was collected during July-October, 2010. But, at page No. 16, the collection of base line data was shown as October, 2010. At page No. 45, it was claimed that the majority of data on water quality, vegetation, air and noise quality were collected during field studies in August-October 2010. But, it was claimed that the AAQ monitoring was carried out during July-October, 2010 at page No.73. The runway length was shown differently; originally as 2300 m and subsequently shown as 2800 m. But, an aircraft cannot land and take off with the runway lengths of 2300 m or 2800 m. Nowhere, there is any mention about what would be the length of runway in Phase-II. The terminal design in Phase I was stated to be for 60 incoming and 60 outgoing passengers during peak hours at page 2, 21, 22 of the EIA. But, contrarily at page No. 23, it was shown that design during Phase
-I as 50 incoming and 50 outgoing passengers. Table 2.8.2 provided water requirement at 12 KLD in Phase-I and 58 KLD in Phase-II while Figure 2.3 provided 7.55 KLD in Phase-I and 31KLD in Phase-II. The EIA provided different claim in respect of STP capacity. Figure 2.2.3 at page No. 24 differs from Figure 2.6.2 at page No. 29 for parking.
ii) Even in respect of the land use, at page No.28 of EIA it is stated that the lands were unclassified. But, contrarily at page No. 97, it states as an airport zone. The entire EIA was confined to 10 km radius of the site beginning at page No. 15, Figure 1.8. But, at page No. 10 in the topographic map it was shown as 15 km. It is 189 pertinent to point out that Chapter IV of the MoEF's Environmental Impact Assessment Guidance Manual for airports requires that secondary data is to be collected within 15 km aerial distance for parameters at 9 (III) of Form I of the EIA Notification. No attempts were made to measure emission from aircraft as required in page No. 17 (4.4) of the sector manual. The AAQ standards mentioned in Table 3.9 at page No. 73 of EIA were of the year 1998. But, they have been replaced by more stringent standards on 18.11.2009. A reading of the EIA would indicate that substantial portions were devoted to sewage treatment, solar lighting, and other peripheral issues and their likely impacts. Even blank is noticed at page No. 22 in the EIA report which reads "the city of...................is located ..." There was no discussion on how the hazardous waste was to be handled and the solid waste generation was understood to be 27 kg/day. It is clear that the EIA proceeded on the basis that it was a factory which fact would be clear at page No. 102 (4.4.8) while discussing 'within the plant building' and at the nearest plant boundary at page No. 102 (4.4.6). The non-application of mind on the part of the MoEF is evident since it has acted on a EIA which was prepared by the consultant who was neither qualified to prepare the EIA report for the airport project nor was an accredited consultant and was also not entitled to either prepare the EIA or represent the project proponent at the EAC meeting. The EAC has also taken note of the fact that the public hearing was not proceeded in accordance with the mandate as found the EIA Notification, 2006. The project site was environmentally sensitive and diverse supportive to flora and fauna and any disturbance to maintain the ecological balance would lead to the loss of irreplaceable resource. This fact was not taken into consideration by the EIA. The EIA had no information on animals in the area which was pointed out by the Salim Ali Foundation report. But, the same has been disregarded by the 1 st 190 respondent/MoEF on flimsy grounds. No attention was paid to rehabilitation and resettlement though the land acquisition was contemplated in the project. The project in question would affect the water flow in the area due to blocking of the water bodies. It is pertinent to point out that the website of the project proponent stated that the Aranmula airport is an international airport when the EIA report at page No.1 stated as domestic airport. Thus, most of the information on which clearance was given was relying on self serving assertions made by the project proponent. No reasoning is given why EAC did not undertake a site visit or required in-depth third party verification on the claim made by the project proponent when there was a threat to bio-diversity, wetland area and in particular, when EIA did not provide adequate information to reach a conclusion on the allegedly benign nature of the project. The EIA report did not assess the impact of proposed activity on land, water, area and did not provide details of those as mandated by law. A mere reading of the EIA would make it apparent that it has not considered or assessed any impact whatsoever, both during construction and operational phases. In respect of each parameter of the EIA report, contains not more than 4 sentences, which is demonstrative of the manner in which the entire exercise has been carried out. This would clearly speak as to the inadequacy of the EIA report. But, the respondents have no explanation to offer on all or any of the matters.
iii) The learned counsel would further submit that the EIA report contained many false and misleading data and the entire report was a farce which should have been rejected by the MoEF. A mere perusal of the Form No. I submitted by the project proponent would indicate that the project proponent suppressed the material facts before the MoEF. The facts that were sought to be furnished in the application as essential for MoEF to come to the conclusion are necessarily to be provided so as 191 to come to an independent conclusion about the environmental impact. In the said process, the role of the State Government was that of an agency that is expected to assist the MoEF in coming to a fair and correct decision with regard to the environment impact. The State Government is expected to provide necessary factual and legal inputs so that the MoEF could analyse various aspects of the matter to ascertain whether the claim of the proponent was correct or not. But in the instant case, the State Government has not pointed out the suppression of material facts by the project proponent nor submitted actual facts before the MoEF. The project proponent has suppressed several material facts and has also made false statements which have direct and serious bearing on the outcome of the proceedings of the MoEF in granting EC. In the application, the project proponent has stated that there were no Government orders or policies relevant to the site in question when it required exemption under Kerala Land Reforms Act and Kerala Paddy Land and Wetland Act for utilizing the property. The project proponent has stated in the application that there were no permanent change in the land use, land cover and topography including increased intensity of land use. But, the instant project can be implemented only by converting the paddy land and wetland by filling the same. The project proponent has stated that there was no reclamation work in the project when he admitted to the reclamation of paddy land and wetlands. The project proponent has also made a wrong statement that there were absolutely no changes in the water bodies or the land surface affecting the drainage or runoff. These false statements were made when the land required reclamation and the same would seriously affect the water containment of that area affecting the drainage. The project proponent has falsely stated in the application that there was absolutely no land undeveloped or agricultural. It is an admitted fact that except the 192 area 42 acres filled illegally by the predecessor of the proponent when the land remained undeveloped and the same included agricultural land also. In so far as the environment sensitivity was concerned, the project proponent has stated that there are no areas to be protected under international convention, national or local legislation for their ecological landscape, agricultural or other related value. This false statement was made when the entire area was declared as a heritage site by the United Nations and there was Kerala Paddy land and Wetland Act as far as the ecological landscape value of the property was concerned. The project proponent further stated that the area is not occupied by manmade land uses such as hospitals, schools, places of worship etc., It is pertinent to point out that Aranmula Parthasarathy temple is situate within 100 m from the boundary of the proposed site and less than 400 m from the runway of the proposed airport. There are other hospitals, schools, etc., situate adjacent to the property in question. The project proponent has stated that the area does not contain important high quality or scarce resources such as ground water, surface water source, forestry, agriculture, fisheries, tourism, minerals etc., and the area is not subjected to pollution or environmental damage, when the reports of the officials of the State Government show that the illegal filling of 42 acres of land had already caused damage to the environment. Thus, not only the project proponent has made false statement but also the State Government officials have failed to point out the same and instead of pointing out the above, they have connived with the project proponent before the MoEF.
iv) The counsel would further add that as far as the nature of the land is concerned, from the materials available and from the stand taken by the project proponent, as well as the State Government, it can be see that major portion of the 193 land in question is either paddy or wetland. The only contentions put forth by the project proponent and the State Government is that the paddy land cannot be considered as the wetland and since there was no cultivation in the land for so many years, the lands remain shallow. Hence, the question to be considered is that whether there would be any environmental impact, even assuming that the shallow land was reclaimed and whether such reclamation would have an adverse impact in the remaining paddy land of that area. This is the most important criteria fixed by the Legislature in Kerala Conservation of Paddy land and Wetland Act for granting permission to fill paddy land or wetland. The officers of the revenue and agricultural departments of the Government of Kerala categorically stated that the reclamation of 42 acres of land has already caused serious damage to the cultivation in the adjacent paddy land. When such is the situation, there should have been a proper study conducted by the MoEF before granting clearance for setting up the airport with permission to reclaim paddy or wetland or shallow land. From the EC, it could be seen that the airport cannot be set up without reclaiming the land. There are disputes regarding the extent of land required to be filled. But, it is an admitted fact that reclamation was required. Even if the permission is granted by the MoEF for reclamation of land, the project proponent cannot reclaim the land without getting permission under the Kerala Paddy Land and Wetland Act. If such permission for reclamation is to be granted under section 10 of the said Act, recommendation of the Local Level Monitoring Committee with the report of the State Level Committee constituted under the Act stating that no alternate land is available and such conversion or reclamation will not adversely affect the cultivation of paddy in the adjoining paddy land and also ecological condition in the area. In so far as the alternative land is concerned, the proponent has admitted in the Application made in 194 Form I that it did not propose for an alternate land. It is pertinent to point out that the Local Level Monitoring Committee has already reported to the Government that the illegal reclamation of 42 acres of paddy land has already caused serious damage to ecological conditions and has adversely affected the paddy cultivation in that area and has reported further that any further reclamation will have serious adverse impact on cultivation. Without considering the same, the MoEF has granted the EC, thereby permitting the project proponent to fill the paddy and wetland. No independent study was conducted on the nature of the land and environment impact the reclamation might cause, but permission was granted for reclamation. From the minutes of the EAC and order of the MoEF granting the EC, it is clear that both the bodies have not applied their mind independently and have not collected any inputs so as to arrive at a proper decision. The authorities simply relied on the data provided by the project proponent and the State Government, but have not taken any step to independently verify the veracity of the claim. The minutes of the meeting of the EAC and the order of the MoEF would reveal that they have simply reiterated the contentions of the project proponent as well as the State Government believing the entire version as true and thus it would be quite clear that the EC has been granted without assessing the actual environment impact since sufficient materials were not placed to ascertain the same. From the report of the 5 th respondent/Enviro Care India Pvt. Ltd., the agency which was entrusted with the study of environment impact, it could be seen that that no study whatsoever, was made about the adverse impact on environment or the reclamation might cause. But, it is admitted that the main engagement of the people in the locality was paddy cultivation. If the reclamation affects the paddy cultivation of the locality, the project cannot be allowed at all. The fact that the temples protected by the Archeological Department of the 195 State Government as well as the Central Government exist nearby the site was suppressed by the project proponent. No study whatsoever has been conducted to assess the impact that might have on Aranmula Parthasarathy temple if the proposed airport is set up. Admittedly, the said temple is 1500 years old and is situate in less than 400 m from the runway of the proposed airport. High frequency sound of the aircraft would break vibration that is created while chanting mantras which creates a molecular ordained system and in consequence it would have serious impact to the divinity of the temple. The structure of the temple is very ancient architecture with heritage value and this structure would be damaged due to the noise created by the aircraft. The temple mast is situated in the flight path and very near to the runway. If the height of the temple mast is reduced or lighting is done to the temple mast, it would seriously affect the religious sentiments of thousands of devotees of the temple and would adversely affect the divinity of the temple. Thus, there would be absolutely no material available before the MoEF to come to an independent conclusion about the environmental impact the project might cause.
v) An affidavit has been filed by the Director General of Police/Kerala before the Hon'ble High Court of Kerala in a petition filed to quash the First Information Report registered in the vigilance case initiated against the project proponent and the officials of the State Government, from which it can be seen that serious irregularities have been committed by the State Government officials and the project proponent which include suppression of material facts and forgery of documents for obtaining the EC. It is pertinent to note that the project proponent has not even acquired the title of the lands in question and the Taluk Land Board has already initiated proceedings under the Kerala Land Reforms Act to take possession of the lands in 196 question treating the same as excess lands. The documents by which the project proponent has purchased the land itself is void as per the provisions of the Kerala Land Reforms Act. Thus, there was absolutely no justification in the action of the MoEF in granting the EC without properly assessing the environment impact the project might cause and hence, it is liable to be set aside. Thus, appraisal of the project carried out by the EAC is vitiated due to non-application of mind to relevant considerations. The minutes of the EAC recommending the grant of EC is in complete violation of law. The reading of the minutes would show that there was no detailed scrutiny of the issues involved. 13 aspects were pointed out during the public hearings which were not even addressed by EAC in its meetings. The EAC has blindly approved the explanation of the project proponent. In support of his contentions the learned counsel placed reliance of the Judgments of this Tribunal in Samata Vs. Union of India and others in Appeal No. 9 of 2011 and the judgment in Utkarsh Mandal Vs. Union of India of the Delhi High Court in W.P. (Civil).No. 9340/2009.
vi) Advancing the arguments on behalf of the 1st respondent/MoEF, the learned counsel Smt. C. Sangamithirai would submit that the EIA report submitted by the project proponent was taken for consideration in three meetings of the EAC and following all the procedural formalities. The EAC after considering the pros and cons, recommended for EC and the same has been correct and accepted by the 1st respondent/MoEF and the impugned EC was granted in favour of the 3 rd respondent/project proponent. The contentions putforth by the appellants are unfounded and cannot be accepted both factually and legally. The EIA study has covered the flora and fauna in Chapter 3 of its report. The case in so far as the contentions of the appellants that the project site included wetland and paddy fields 197 and also that there are public objection to the conversion of the paddy fields and wetlands, a factual report was sought for from the Environment Department of the Kerala Government. The project proponent also sent reply on 01.03.2012 stating that the Government had notified 500 acres of land for development of the airport. There was no paddy cultivation for more than 10 years. A letter dated 26.06.2012 sent by the Government of Kerala and approximately 500 acres of land has been declared as an industrial area by a notification in S.R.O. No. 185/2011 dated 24.02.2011. Much reliance was placed by the appellants on a report of Salim Ali Foundation to the effect that there are extensive wetlands in the village. Contrarily, no wetlands were identified in Aranmula Village as per the report of the Centre for Earth Sciences which prepared the report for Kerala. As per the definition of the Kerala Conservation of Paddy and Wetlands Act, 2008, paddy land is not wetland and it is pertinent to point out that the provisions of the Central Wetland Act are also similar. The project proponent has informed that the site is not located in the upstream of Vembanad and neither silent valley nor ecological diversity areas are located anywhere near the site. The proponent had informed that only minimum area required for runway, apron, taxiway etc., would be filled and the remaining area would be preserved in its natural form. The previous owner had filled the runway of 1000 x 150 m for airstrip and hence, only the area required for runway would be filled with 1 m height and the soil required for land filling would be met from elevated area of about 14.5 acres available within the site itself. In order to confirm the statement, all the available source of soil and a contour map was called for, the same was submitted and the statement of the project proponent was found to be correct. In this regard, a specific condition was imposed in the EC. The contentions putforth in respect of rehabilitation and resettlement is totally unfounded. In view of the letter dated 26.02.2012 that only 198 7 houses in the proposed area might require rehabilitation.
vii) Countering the above contentions put forth by the appellants side, that the EC has been granted by the MoEF without any application of mind and without any due diligence, the learned counsel for the respondents would submit that the EC has been granted by MoEF after being satisfied on the recommendations of the EAC which was done after due consideration of relevant documents submitted by the project proponent. It is not a case where EC has been granted without conditions. The EC was issued subject to strict compliance of the terms set forth therein. Annexure I depicts in paragraph 10, 20 specific conditions and in paragraph 11, 31 general conditions which would clearly indicate the fact that the EC has been granted only with proper application of mind and due diligence.
viii) Arguing for the project proponent, the 3rd respondent namely, M/s. K.G.S. Aranmula International Airport Ltd., the learned Senior Advocate Shri T.R. Rajagopalan, would submit that the appellants have contended that the impugned order has been passed without adequately considering the environmental issues that arise in the construction of an airport such as the existence of paddy lands, a minor rivulet flowing through the airfield and the existence of a temple in the vicinity. A bare perusal of the impugned order would demonstrate that all the concerns raised by the appellants have already been addressed by the MoEF in the impugned order. The EC was granted to this respondent after three meetings of the EAC. Each meeting involved the discussion of fresh issues and the various concerns raised both in the report and the public hearing. Finally, a series of special conditions have been imposed on the respondent and the clearance made subject to the strict compliance with these conditions. These conditions address every issue 199 that has been raised in the present case. Thus, the impugned order has been passed after much deliberation and careful consideration and the same has taken into account and adequately addressed all environmental concerns. It is well settled that this Tribunal does not sit in appeal over the policy decision of whether an airport is necessary in the region. The State and Central Governments have decided that there is a need for such an airport and have adequately addressed environmental concerns through the conditions imposed on the clearance granted. As such, the present appeals are liable to dismissed in limine.
ix) On scrutiny of the entire records made available by both sides, the following are noticed by the Tribunal which would clearly adumbrate the non- application of mind and lack of expected diligence on the part of the EAC which recommended the proposal for the grant of EC by the MoEF to the 3 rd respondent/project proponent.
x) This Bench of NGT had an occasion to consider the role and responsibility of EAC while recommending an EIA for grant of EC by MoEF in Samata and another v. The Union of India and others reported in 2014 ALL(I) NGT Reporter (1)(SZ)1. The relevant portions of the said judgment are extracted below:
"43. In so far as the question as to non-application of mind by both the EAC and MoEF, it would be better to look into necessary provisions in the Notification and also decision of the higher courts thereon before considering the merits or otherwise of the rival contentions. Speaking on the stages on the prior EC process for new projects, paragraph 7 of the EIA Notification, 2006 which is ruling the 200 entire field states that it would comprise of maximum of 4 stages, which are:-
(1) Screening ( only for Category B and activities), (2) Scoping, (3) Public Consultations (4) Appraisal,
44. Stage-IV, Appraisal: (1) Appraisal means together with the reasons for the same. The plain meaning of the word 'appraisal' is to 'appraise the thing'. The word 'appraisal' in legal forlorn is defined in Black's Law Dictionary as follows:
"Appraisal: (1) The determination of what constitutes a fair price, valuation, estimation of work, (2) the report of such determination- also term 'appraisement'.
45. Thus, the appraisal of the project requires not only evaluation, but also estimation of works in order to make an assessment or determination of the same. The process of appraisal would certainly require application of mind independently and make evaluation of the available materials to make an approval to regulatory authority to grant EC or place before the regulatory authority with the report to refuse EC. The notification makes it mandatory not only a scrutiny but also a detailed scrutiny to the EAC or SLAEC of the application and other documents like final EIA report, outcome of the public consultation including public hearing proceedings submitted by the Project Proponent. The word 'scrutiny' 201 should have been employed in the Notification by the Legislature with clear intention that a critical observation or examination of all the available materials before submitting a recommendation to the regulatory authority. The Notification requires a categorical recommendation from the EAC or SLEAC on conclusion of the proceedings of appraisal. Hence, the appraisal cannot be a mere formality or a simple ritual to pass on. The Hon'ble High Court, Delhi in Utkarsh Mandal Vs. Union of India ( 2009 X AD (Delhi) 365 has held as follows:
"We, therefore, hold in the context of EIA Notification dated 14 September 2006 and the mandatory requirement of holding public hearings to invite objections, it is the duty of the EAC, to whom the task of evaluating has been delegated, to indicate in its decision the fact that such objections, and the response thereto of the project proponent were considered and the reasons why any or all of such objections were accepted or negatived. The failure to give such reasons would render the decision vulnerable to attack on the ground of being vitiated due to non application of mind to relevant consideration and therefore arbitrary. (Para 4)."
46. The Hon'ble Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi (1991) 2 SCC 716 has held as follows:
"21. Thus, it is settled law that the reasons are harbinger between the minds of the maker of the order to the controversy in question 202 and the decision or conclusion arrived at. It also excludes the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. The order when it affects the right of a citizen or a person, irrespective of the fact, whether it is quasi judicial or administrative fair play requires recording of germane and relevant precise reasons. The recording of the reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aid the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of this Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person."
47. The NGT in Appeal No. 20/2013 in Rudresh Naik Vs. Goa State Coastal Zone Management Authority has held as follows: " It is settled rule that administrative authorities which are dealing with the rights of the parties and are passing orders which will have civil consequences, must record appropriate reasons in support of their decisions. Certainly, these decisions must not be like judgments of the courts, but they must provide insight into the thinking process of the authority as to for what reasons it accepted or rejected the requests of the applicant. (Para 12, 13 and 14)"
162. The application filed by the project proponent seeking EC in Form I for the proposed airport did not reveal the true, correct and complete disclosure of 203 factual details and it also suffered by suppression of facts and with false statements as detailed infra:
1. The EIA report placed before the EAC was prepared which was by a thoroughly unqualified and incompetent agency for the reasons supra.
2. Even before the ToR was finalized on 13.10.2010, the 5 th respondent/consultant collected data, both primary and secondary and admittedly, conducted the field study between July to October 2010.
3. The EAC did not raise any query regarding the competency and also the commencement and completion of field study even before the finalization of ToR.
4. The EIA was made a thorough deviation and was prepared in violation of the EIA Guidance Manual for Airports issued by the MoEF on vital aspects. The EIA Guidance Manual for Airports requires that the primary data should cover one season other than monsoon and while the secondary data should be collected for one full year. Contrarily, the entire data were collected only during monsoon. The EIA placed before the EAC would clearly indicate that the entire data was collected covering a distance of 10 km radius of the site, while the sector specific manual states at page No. 10 about topo map for 15 km radius. Apart from that, Chapter 4 of the Manual states that the secondary data should be collected covering 15 km aerial distance for parameters at 9 (III) of Form I of the EIA Notification. Clause 4.4 of the sector manual requires the measurement of the emission from the aircraft has to be taken into account. But, no attempt was even taken during the study towards this. It is true that AAQ standards are mentioned in Table 3.9 at page No. 73 of the EIA report, but they were 204 of the year 1998. Those AAQ standards have been replaced by standards on 18.11.2009 which are more stringent. There is nothing to indicate in the EIA report that there was any study made with airport related issues, such as, aircraft noise, emission of hydrocarbons and their likely impact. No discussion is found as to how the hazardous waste is to be handled. The solid waste generation shown as 27 kg/day which cannot but be an understatement. It castes a doubt whether the EAC had in its mind a plant or a factory instead of an airport project while considering the EIA. The words 'plant, plant site, plant building, plant operators' are used in paragraphs 3.12.1, 3.15.1, 4.3.7, 4.4.6 and 4.4.8. Paragraph 4.4.8 of the EIA reads as follows:
"Elaborate green belt and aforestation will be developed along peripheral and other vacant portions of the factory premises, which will considerably enhance the floristic density in the area." Para 5.1.1 reads "... by implementing better technology, the factory can often take advantage of the dual benefits of reduced waste generation and a more cost efficient operation."
Similarly, paragraph 4.4.5 reads, "The increase in traffic density due to transportation of raw materials and products will be very low by means of lorries and truckers 120-180 times per month."
No doubt, all the above are out of context and irrelevant and made without any application of mind. Probably, the same might be a verbatim copy of some other report for a factory or plant.
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5. As could be seen from the EIA Notification, 2006, there is a mandate for the preparation of a draft EIA report initially and after finalization of ToR and summing up of such draft EIA report has to be necessarily placed during Public Consultation as required under paragraph 7. III - Stage (3). In paragraph 7.III(vii) of the EIA Notification, 2006 reads, " After completion of public consultation, the applicant shall address all the material environmental concerns expressed during this process and make appropriate changes in the draft EIA/EMP. The final EIA report so prepared shall be submitted by the applicant to the concerned regulatory authority for appraisal." The 5th respondent/consultant has categorically admitted in his reply that they submitted the EIA report in October, 2010, which is only a draft EIA report. The 3 rd respondent/project proponent has filed a report which incorporated the minutes of the public hearing details which are not only insufficient, but also cannot be termed as final EIA report as envisaged above. Thus, in the instant case, no final EIA report was ever prepared or submitted by the applicant before the concerned regulatory authority.
6. At the time of the public hearing, as seen from the minutes of the hearing the local people who participated in the public hearing voiced their concerns and objections to the draft EIA report. But, none of the objections was addressed in the EIA report. It is pertinent to point out that when those objections and concerns were voiced by the participants during the public hearing, the 3rd respondent/project proponent had given clear undertaking that a detailed EIA study would be conducted later. But, no material was placed to indicate that any detailed EIA study was conducted later. Apart 206 from that, the EIA report would show that no such subsequent study was conducted. If the undertaking given by the 3 rd respondent/project proponent at the stage of public hearing to conduct a detailed EIA study was not done, the EAC should have rejected the EIA report as incomplete for want of a detailed EIA study. This would also be indicative of non- exercise of due diligence on the part of the EAC. The EAC has thoroughly forgotten that it could only appraise a final EIA report and nothing less than that, since paragraph 7.IV of the EIA Notification, 2006 requires the EAC to scrutinize only a final EIA report.
163. Thus, in the instant case, even without a final EIA report, the other materials were taken up for appraisal and hence, both the appraisal by EAC and consequent clearance by MoEF have to be termed as faulty.
164. The EIA report did not assess the impact of the proposed activity of the 3rd respondent/project proponent on land, water air, environment and ecology of the area and it did not provide the required details in these respect as mandated by law, thereby enabling the EAC to make a scrutiny and take an independent decision on the issues of environment. The inadequacy of the EIA report is demonstrated by the fact that it has not considered details about the flora and fauna. The EIA report did not provide any details about the flora in the region except stating that there are no endangered species in the area. A report of the Salim Ali Foundation clearly states that there are more than 212 species of plants. The report also states that there are more than 60 species of fishes and more than 80 species of birds. But, the EIA report did not reflect the same. The EIA has not made any attempt, whatsoever to characterize the ecology of the area including wildlife that inhabits forested lands 207 which required to be cleared for providing a long runway at the proposed airport. The crucial aspects relating to filling up of paddy lands and its impact on the environment were not considered though objections were raised in that regard.
165. The EIA report never cared to consider the environmental impacts of converting Aranmula paddy lands, in particular, the reclamation of those lands and its consequences. The EAC has not considered the materials placed in respect of conversion of part of paddy lands which according to the 3 rd respondent/project proponent the same was done by his predecessor in his interest. But, admittedly, a number of proceedings were initiated in both and criminal courts and even by vigilance department of the State of Kerala which were all pending during the relevant period. It is admitted by the 3rd respondent/project proponent that the entire are of 500 acres of land required for the airport project and consists of both paddy lands and wetlands and it is also added by the 3rd respondent/project proponent that the lands remained shallow for dacades and hence it can be put into better use of construction of the airport. It is also true that the conversion of the land - both paddy lands and wetlands already done and proposed to be done are actually the subject matter of the proceedings before different fora in Kerala State, which fall outside the jurisdiction of the Tribunal. But, the pendency of those proceedings does not impede the Tribunal to consider the impact of such conversion and alleged degradation of environment. In the instant case, admittedly, a part of the paddy fields/wetlands was converted while the remaining is to be converted by the 3 rd respondent/project proponent for the proposed airport. The conversion of paddy fields and wetlands, its impact on the ground water resources in the area, the impact of the rivulet and streams, namely, Kozhithodu, and Karumaramchaal were never taken into consideration by the EAC.
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166. The EIA report has not spoken anything about the impact of the project on the displacement of the people as a result of the present project. The EIA report does not even mention the number of houses in the area or population that will be displaced as a result of acquisition of the land for the project and the filling up the wetlands.