Environmental Law.

CASE ANALYSIS: PRAFULLA SAMANTRAY AND ANR

V.

UNION OF INDIA AND ANR.

Equivalent Citation: Appeal No. 8/2011

Submitted by: RAJ SAMIR BHOJANI.

Reg. No. – 17040142026.

Batch 2017-2022.

Submitting to: PROF. SHYAM KUMAR.

Alliance School of Law.

Alliance University, Bangalore.

Date of Submission: 1st November 2020.

1) Title and Citation.

PRINCIPAL BENCH, NEW DELHI.

APPEAL NO. 08/2011.
30TH DAY OF MARCH 2012.
a) Prafulla Smantray.
b) Biranchi Samantray. Appellants.
V.
a) Union of India.
b) Orissa State Pollution Control Board.
c) M/S Posco India Pvt. Ltd. Respondents.

2) Relevant Facts.

1. The said appeal was filed under section 18(1) read with section 14(1) and section
16(h) of NGT Act 2010 against the order of the Ministry of Environment & Forest
dated 31.01.2011 which imposed additional conditions to the environmental clearance
concerning steel cum captive power plant project and captive minor power project of
POSCO India ltd. 
2. Appellant no. 1 was an environmental and social activist residing in Orissa. He has
been drawing the attention of the state as well as the nation to the social and
environmental problems in the state of Orissa. The appellant has sent various
objections to the Orissa State Control Board concerning the PH conducted by POSCO
India Ltd. Appellant no. 2 is living in Dhinkia and Kunjang District. He is a marginal
farmer and a priest of a temple in the village. He and his family are directly affected
by the project because his land is been taken away where the family was doing
padding. He was also protesting against the project because it would create a huge
impact on agriculture and water resources. 
3. According to the MOU, the 12-million-ton project costing 51000 crore included the
following:
 Integrated steel plant with captive power plant project at Kujang, near Paradip
in Jagatsinhpur district of Orissa. 
  The captive port at Jalandhar in Jagatsinhpur district of Orissa.
 Mining project. 
 Integrated township and water supply infrastructure. 
4. The EC concerning the Steel Captive Power Plant was passed on 15.05.2007 and the
captive power plant dated 19.07.2007 after which the review committee headed by
Ms. Meena Gupta submitted the final order which consisted of 2 reports i.e. minority
report and majority report which was notified by MOEF on 31.01.2011. 
5. The PH concerning the project was not conducted by the authorities in compliance
with relevant laws that were in force. Further, the MOEF had accepted the minority
report of Ms. Meena Gupta who was the Secretary to the Government of India, MOEF
against the majority report. 
 
3) Issues.

a) Whether the Appeal has been filed within the period of limitation in so far as
challenging the ECs granted in May/June, 2007 and whether appeal can be
entertained to that extent?
b) Whether the PH was properly conducted following the prescribed procedure
applicable at the relevant point of time and same is valid?
c) Whether the MOEF was right in accepting the review report submitted by Ms.
Meena Gupta who participated in the issue of grant of original ECs since she was
the Secretary to the Government of India, MOEF and whether the Government
was right in rejecting the majority report of the review committee?
4) Issue wise Contentions.

ISSUE NO. 1

a) Whether the Appeal has been filed within the period of limitation in so far as
challenging the ECs granted in May/June, 2007 and whether appeal can be
entertained to that extent?
Respondents:
The respondents contended that the appeal is not within the period of limitation
which is to be fulfilled under the NGT Act. The EC concerning the Steel Captive
Power Plant was passed on 15.05.2007 and the captive power plant dated
19.07.2007 which is not being challenged before the court. After both the EC were
granted a four-member review committee was formed by respondent no. 3
because of the complaints and other objections against the project, which was
headed by Ms. Meena Gupta. The committee submitted its final and amended
TORs on 18.10.2010 to the MOEF. The final EC was issued on 31.01.2011.
However, the appellant has challenged the EC granted on 31.01.2011 and not the
original EC’s granted in 2007. In fact, under the NGT Act, the appellant is not
allowed to challenge the EC granted on 15.05.2007 and 19.07.2007 as the same is
barred by limitation. Also, the NGT act came into force in 2010 and the original
EC is passed in 2007 and therefore the legality of the original EC could not be
challenged.

Appellants:
The appellants contended that the original EC’s i.e. Steel Captive Power Plant was
passed on 15.05.2007 and the captive power plant dated 19.07.2007 was not in
effect as many other clearances were pending and for the same reasons a four-
member review committee was made headed by Ms. Meena Gupta and the final
order was given 31.01.2011. For the same reasons it can be rightly said that the
original EC’s dated 15.05.2007 and 19.07.2007 were under review and the final
EC was only granted on 31.01.2011. Therefore, can be said that when the final
order was passed on 3101.2011 the original EC’s of 2007 are merged in the final
order of 2011. Further, it also contended that when an order is under review it the
identity of the original order is lost and a new identity is given under the new
order. As a result, the period of limitation would arise only after the final order
was issued and not when the original order was issued and the appeal is
maintainable against the original EC granted in 2007.

ISSUE NO. 2

b) Whether the PH was properly conducted following the prescribed procedure

applicable at the relevant point of time and same is valid?
Appellants:
The appellants argued before the court that how the PH was conducted and the
EIA report was assessed by the expert committee under MOEF is questionable
because based on the PH and EIA report submitted to the review committee the
final order was issued. That the procedure for conducting PH was not at all in
accordance with EIA notification of 2006 because none of the procedures were
followed by the same. That the said notification was not followed in spirit or
letter. Further, the assessment committee as well as the MOEF have not
considered all the social and environmental impacts of the said large project. That
there were 2 projects namely steep power plant and captive minor power plant but
only one PH was conducted which was also done far away from the site and with
low participation. From the initial stages itself, various objections were raised
about how EIA was being done by the committee and the approval of those
reports by the MOEF is unfair and unjust because the issues raised mentioned in
the minutes of the meeting were ignored by the EAC. The majority committee
formed in 2010 had said that the PH was not properly conducted and that the EIA
and EAC did not evaluate the original EC granted in 2007 properly. Further, only
the EAC took into consideration only the minority report of Ms. Meena Gupta
who was the Secretary of Government of India, and ignored the findings of the
majority report.

Respondents:
The respondents had denied all the allegations of the appellant. That the OSCPB
and MOEF had followed all the regulations and the procedures of the EIA
notification 2006 as well as 1994 in spirit and letter. That the EIA notification of
 1994 had an overriding effect on the EIA notification 2006 according to the
interim guidelines issued by the MOEF on 13.10.2006 and that all the procedures
were followed under the 1994 EIA notification. It was contended that the PH was
properly conducted after giving all the participants the opportunity who were
within the boundaries of the project. It is that the representations of every
participant were taken into consideration and only then the summary of the PH
was made available to the people at the end of the process. Further, the rapid EIA
was also conducted within the guidelines of the EAC and the EC for same was
granted. The majority report of the review committee was preceded by the report
of Ms. Meena Gupta and for the same reasons, the minority was rightly accepted.
Apart from this, any of the issues raised by the appellants are not worth
consideration. Therefore, the EC granted by the MOEF and final order issued on
31.01.2011 are free from any legal irregularity and does not need any kind of
interference of the tribunal.

ISSUE NO. 3
c) Whether the MOEF was right in accepting the review report submitted by Ms.
Meena Gupta who participated in the issue of grant of original ECs since she was
the Secretary to the Government of India, MOEF and whether the Government
was right in rejecting the majority report of the review committee?
Appellants:
The appellants contended before the court on certain complaints, respondent no. 1
had formed a review committee of 4 members which was headed by Ms. Meena
Gupta. That there were two reports submitted by the committee i.e. majority
report of the 3 members and the minority report of Ms. Meena Gupta. The report
of Ms. Meena Gupta should not have been considered in the first place because it
was a minority report. Further, at the time of the grant of the original EC’s, Ms.
Meena Gupta was the Secretary of the MOEF and should not have been made a
member of the review committee. Ignoring all these facts, she was made the
chairman of the review committee. The executive summary submitted by Ms.
Meena Gupta was not endorsed by the minority committee and the minority report
was not endorsed by Ms. Meena Gupta. Though the majority report was ignored
by the EAC and based on the minority report the final order was passed on
31.01.2011 with additional conditions to original EC’s. The majority report had
 pointed out the irregularities in the PH conducted and suggested a fresh PH to be
conducted.

Respondents:
The respondents had denied all the allegations made by the appellants in the said
case. The respondents argued before the court that the majority report of the
review committee was preceded by the report of Ms. Meena Gupta and for the
same reasons, the minority was rightly accepted. That the EAC had accepted the
minority report of Ms. Meena Gupta because the committee was formed under her
chairmanship and the decisions made by her would be would precede the
decisions made by other members. Therefore, the minority report accepted by the
EAC is correct and the EAC has rightly rejected the majority report. Since the EC
has been granted there is no reason to go into the details of the said EC’s. Apart
from this, any of the issues raised by the appellants are not worth consideration.
Therefore, the EC granted by the MOEF and final order issued on 31.01.2011 are
free from any legal irregularity and does not need any kind of interference of the
tribunal.

5) Issue wise judgment with reasoning.

ISSUE NO. 1

a) Whether the Appeal has been filed within the period of limitation in so far as
challenging the ECs granted in May/June, 2007 and whether appeal can be
entertained to that extent?
After taking all the facts into account it is held that the original EC was
granted/issued in 2007 after which a review committee was formed in 2010 and
the final order was passed on 31.01.2011. The above appeal is filed under section
18(1) read with section 14(1) and section 16(h) of NGT Act 2010 challenging the
order passed on 31.01.2011 which added various conditions to the EC’s of 2007.
However, it is important to note that the review committee was itself formed after
3 years which resulted in additional conditions as precautionary measures and
therefore it is not proper to say that the original EC merged with the final order
and therefore the conditions attached to the original EC should not be allowed to
challenge. The final order dated 31.01.2011 only contains a precautionary
measure which is added to the original EC. Therefore, the order of 31.01.2011
cannot be considered as a merged order of EC’s granted in 2007. There is a
difference between administrative and judicial orders. An administrative order
cannot be merged like an judicial order Further, section 14 of the NGT Act cannot
be applied in the present case because even according to the appellant there is no
substantial question of environmental issues as according to section 2(m). The
court is also in agreement with the respondent concerning maintainability under
section 16 because the NGT Act came into force in 2010 and the original EC was
given in 2007. Therefore, the appeal filed is barred by limitation and only
maintainable for the order passed on 31.01.2011 and not the issue of original EC’s
of 2007.

ISSUE NO. 2
b) Whether the PH was properly conducted following the prescribed procedure
applicable at the relevant point of time and same is valid?
Issue no. 1 has already been decided and the original EC granted in 2007 cannot
be challenged. Issue no. 2 is only be answered because the appellants and
respondents have advanced their arguments in detail for the said issue.
After examining all the submissions made by both parties it can be concluded that
there was no irregularity in the PH. The procedures mentioned under EIA
notification 2006 and 1994 are different. All the contentions of the appellant are
based on the 2006 notification and the same could not be given effect because the
government issued a circular dated 13.10.2006 wherein the respondents had to
follow the procedures of the 1994 notification. Though the majority of findings
had suggested a fresh PH to be conducted they have not taken into account that
the procedures of 1994 EIA notification were followed and not 2006. The EIA
report was placed for consideration according to the relevant provisions of the
2006 and 1994 notifications. Further, the EIA was also conducted according to the
procedure prescribed by the relevant laws which were in force. The magistrate has
rightly prepared the summary of the PH proceedings conducted and made it
properly available to the participants and the public at the end of the process.
 There is no substantial error committed in the PH proceedings and why the
proceedings are procedural wise correct are explained in the above paragraph.
Therefore, the allegation of the appellant that the PH has not properly conducted
by the respondents is not acceptable and stands rejected.

ISSUE NO. 3
c) Whether the MOEF was right in accepting the review report submitted by Ms.
Meena Gupta who participated in the issue of grant of original ECs since she was
the Secretary to the Government of India, MOEF and whether the Government
was right in rejecting the majority report of the review committee?
The majority report submitted by the review committee had suggested that there
was a shift concerning the EC’s granted. There was no mention that the review
committee is allowed to go into the legality of the EC granted or the PH
conducted by the said authorities. For the same reasons it can be contended that
the committee was appointed to cancel the EC. In the said, it was seen that the
majority report had submitted various irregularities in the PH and had suggested to
conduct fresh PH. However, the committee has exceeded its authority and has
suggested cancellation of the EC. The only job of the committee was to review the
EC.
It is important to note that the review of Ms. Meena Gupta was a balanced one but
the EAC has also not considered all the suggestions made by her. Nonetheless, it
has been observed that Ms. Meena Gupta was the Secretary of the Government of
India, MOEF at the time of grant of original EC. It is difficult to decide if Ms.
Meena Gupta is fair or not. However, as she was a part of the original EC, the
final order of 31.01.2011 is hit by official/departmental/personal bias. This is
considered against the principle of natural justice and is in gross violation of the
same. As a result, the entire process of the review committee is vitiated under law
The court has considered the impact of such huge projects which create
employment and industrial development. Nonetheless, those developments should
be within the environmental and ecological standards along with complying with
sustainable development and precautionary principles.
 In the light of the above issues decided considering the industrial development
along with the environmental concerns the following directions were passed:
1) The MOEF should make another review of the project considering the
minority report as well as the majority report.
2) The final order dated 31.01.2011 is suspended until the fresh review, its
assessment by the EAC and final order MOEF.
3) In the fresh review the MOEF shall include specialists to address the
environmental issues.
4) The MOEF shall give timelines for complying with the conditions of the EC
and develop a committee to review the progress continuously and regularly.
5) The MOEF shall consider allotting land for 4 MTPA rather than 12 MTPA
which is a future contingency. The EIA report shall also consider the
combined impact of the other components of the projects including the
projects which are exciting in the vicinity.
6) The MOEF should insist the companies to create its own source of water
instead of diverging the water which is meant for drinking and irrigation
purposes.
7) The MOEF shall make directives/guidelines to apply for a single EC when
their components that are essential for the main industry.
8) The MOEF shall conduct a Strategic Environmental Assessment for the
number of ports at the coastline of Orissa considering biodiversity risks.
9) In cases where MOU is signed with big corporations, the EIA from the initial
stage should be assessed for full capacity and accordingly the EC should be
granted.

6) Law Points / Rule of law.

The following legal provisions were involved in the case:
National Green Tribunal Act, 2010.
Section 18(1).
The tribunal had interpreted the said provision because the application made under
section 14 and 16.

Section 14(1).
 The tribunal had taken up the provision to examine if there was a substantial
environment issue as mentioned under schedule 1 and section 2(m)

Section 2(m).
The tribunal referred to the said provision to decide the question raised in section 14.

Section 16(h).
The tribunal cited the said provision as an environmental clearance was granted under
Environment Protection Act, 1986 as mentioned under section 16(h)

Environment Impact Assessment Notification.

Notification of 1994.
Notification of 2006.
The tribunal had called its attention to both the notification of 1994 and 2006 to
scrutinize which of 2 notifications were in force while conducting the PH.

7) Analysis / Conclusion:

The National Green Tribunal Act was enacted in 2010. Under section 16 of the said
Act, the tribunal has been vested with appellate jurisdiction. Therefore, an appeal can
lie to the tribunal if any order is passed on or after the commencement of the act
concerning environmental issues and the acts mentioned under schedule 1. Similarly,
in the above-mentioned, an appeal was filed before the tribunal under section 16(h)
wherein an order was passed granting environmental clearance under the Environment
Protection Act, 1986. The court had interpreted and discussed in the issue no.1. The
court could not dwell into the environmental clearance granted by the MOEF because
the same was passed in 2007 and the NGT Act itself came into force in 2010. Here, it
is pertinent to note that the appellate jurisdiction under section 16 as well as the whole
NGT Act is prospective in nature and retrospective in nature. Therefore, the court
could not decipher the environmental clearances granted in 2007. Apart from this,
under the judicial system the merger doctrine has been adopted which means that
there can only be single order, and if an order passed by a higher court concerning the
same cause of action then both the orders are merged and a single order is passed to
avoid discrepancy under law. However, the same is not in the case of an
administrative order. The tribunal had rightly rejected the contention of the appellant
that both the orders of 2007 are merged into the final order of 2011. Unlike judicial
orders, administrative orders cannot be merged and the doctrine of merger is not
applied to administrative orders. Keeping aside this argument, 2007 could never be
challenged because the same was passed in 2007 and the cause of action of 6
months had lapsed as provided under section 14(3) of the act. It is also important to
make note that there was no substantial question of environmental law as accorded
under section 2(m) of the act. This is because the only affected party here was
Biranchi Samantray and not the public or a community at large. Therefore, the court
had rightly interpreted section 16 and 14 of the NGT Act and allowed the appeal only
against the final order passed in 2011. The tribunal had also rightly recognized that
the additional conditions which were added in 2011 to the original environmental
clearance of 2007 were only a precautionary condition in case if there is a mishap.
The court had rightly applied its duty vested by section 20 of the NGT Act, wherein
the tribunals have to pass orders applying the precautionary principle, sustainable
development and polluter pays. Therefore, the contentions of the petitioner that the
additional conditions were arbitrary and bad in law were rejected while recognizing
the precautionary principle. 
 
In issue no. 2, the tribunal has elucidated the concept of ‘law in force’. The term laws
in force  mean the laws and procedures to be followed during a relevant period. It is
very often seen that the legislature brings amendments to the laws in force and replace
them with some other laws or completely repeal them. While the appeal was filed in
2011 in the said case against the 2007 clearances, it was challenged that it was bad in
law as the procedure under EIA 2006 was not followed by the authorities. Before the
EIA notification of 2006, the procedure laid down in EIA notification 1994 was been
followed for conducting PH. However, while the PH was conducted in 2007 there was
an operational order passed by the ministry that till a particular date if an application
is made then the PH would be conducted by the EIA notification of 1994 and 2006.
The EC in this case was granted within that period. Therefore, the law in force  during
that time was that of 1994 EIA notification and not 2006 EIA notification. Therefore,
the rightly recognized that the law which was in force for conducting PH was the EIA
notification of 1994, and the procedure under the same was perfectly followed by the
authorities. 
 
Section 19 of the NGT Act, 2010 exempts the tribunal to follow any procedures laid
under the Civil Procedure Code, 1908, and the Indian Evidence Act, 1872.
Nonetheless, the tribunal is bound by the principles of natural justice and cannot
avoid or ignore the principles of natural justice in any case. One such notion under the
principles of natural justice is Nemo judex in causa sua i.e. one should not be the
judge of its own cause. Under this rule against bias, 3 major biases were attracted in
the instant case dealt by the tribunal. The first in line is personal bias, wherein the
decision-maker passes the order in favour of the person he/she knows. The second
bias here is the subject matter or official bias, where the decision-maker is directly or
indirectly a subject matter in the case. Last but not least is the departmental bias,
wherein the decision-maker passes the order in favour of the department fraternity
which the decision-maker is a part of. In the instant case, the court accurately
identified these biases and applied the principles of natural justice because the review
committee was formed in 2011 under the chairmanship of Ms. Meena Gupta and she
was the Secretary of the Government of India, MOEF when the environmental
clearances were granted in 2007. She was the one who had reviewed the TOR i.e.
Terms of Reference. As a result, the act of making her the chairman of the review
committee and accepting her minority report, and rejecting the majority report was
against the principles of natural justice. Further, on final order passed on 31.01.2011
was only based on the minority report of Ms. Meena Gupta. Therefore, the tribunal
had appropriately suspended the order dated 31.01.2011 and directed a fresh review as
the earlier order was hit by personal/departmental/official bias of Ms. Meena
Gupta and was in gross violation of the principles of natural justice. 

While analysing the directions issued by the court it can be seen that the tribunal has
executed the obligation of passing the orders while applying the principle of
sustainable development and the precautionary principle as mandated under section
20 of NGT Act, 2010. The tribunal had applied the principle of sustainable
development while recognizing the positive impacts of such large industries like
employment opportunities and industrial development as well as considering the
impact on the environment. The tribunal in its order directed the MOEF to make an
EIA report of all the projects in that vicinity considering the principle of sustainable
development and the precautionary principle in case of an accident or mishap. The
tribunal also recognized that there has to be some sought of precaution for the
biodiversity and for the same reason directed the MOEF to conduct a Strategic
Environmental Assessment for the number of ports at the coastline of Orissa applying
the precautionary principle. While applying the principle of sustainable
development the tribunal directed the MOEF to consider allotting land for 4 MTPA
rather than 12 MTPA which was a future contingency. Therefore, it can be seen the
principle is being applied only for the current needs of sustainably developing the
industry as well as keeping in mind the impact of the 12 MTPA project on the
environment which would be far greater than the project of 4 MTPA. 
 
Therefore, it can be said that there is an immense need for the tribunal to pass orders
while applying the principles of Section 20 of the NGT Act, 2010. This is because
environmental problems or issues are going to be the top priority for every nation in
the future. After all, the only way the extinction of human beings can be saved is by
protecting the environment and one such example of in present-day scenario is the
COVID-19 wherein the environment has given a reaction to the arbitrary acts of
humans.