Item Nos.

01 to 05

BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)

Original Application No.578/2018

(Earlier O.A. No. 26/2013(SZ) (THC)
WITH
Original Application No. 579/2018
(Earlier O.A. No. 27/2013 (SZ) (THC)
WITH
Original Application No. 580/2018
(Earlier O.A. No. 28/2013 (SZ) (THC)
WITH
Appeal No. 176/2018
(Earlier Appeal No. 51/2012 (SZ) (THC)
WITH
Appeal No. 86/2017 (SZ)

Janajagrithi Samithi Applicant(s)

Versus

The Union of India & Ors. Respondent(s)

WITH

CSI St. Luke’s Church Applicant(s)

Versus

The Union of India & Ors. Respondent(s)

WITH

Ballibettu Alide Deasthana, Yellur & Ors. Applicant(s)

Versus

The Union of India & Ors. Respondent(s)

WITH

Janajagrithi Samithi Appellant(s)

Versus

The Union of India & Ors. Respondent(s)

WITH

Janajagrithi Samithi Appellant(s)

Versus

The Union of India & Ors. Respondent(s)

Heard on : 06.02.2019
Uploaded on: 14.03.2019

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 CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON’BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON’BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON’BLE DR. NAGIN NANDA, EXPERT MEMBER

For Applicant/Appellant(s): Mr. Yogeshwaran, Advocate

For Respondent (s): Mr. Dhruv Mehta, Senior Advocate with

Mr. Anubhav Ray, Mr. Rajeswaran P.N.,
Mr.Mahesh Agarwal, Ms. Neeha Nagpal,
Mr. Arshit Anand and Ms. Aditi Phatak,
Advocates for R-5
Mr. Devraj Ashok, Advocate for
Government of Karnataka and KSPCB
Ms. M. Sumathi, Advocate for MoEF&CC
Mr. G.M. Sayed Nurulla Sheriff, Advocate
for MoEF&CC in Appeal No. 86/2017(SZ).

JUDGEMENT/ORDER

Per Justice S.P. Wangdi, Judicial Member

1. Writ Petitions No. 21439/2005 (GM-POL-PIL), W.P. No. 5588/2008

(GM-RES-PIL), W.P. No. 11095/2007 (GM-RES-PIL) and W.P. No.

2180/2007 (GM-RES-PIL) were initially filed before the High Court of

Karnataka but were later transferred to the National Green Tribunal,

Southern Zone Bench at Chennai in terms of the orders passed by

the Hon’ble Supreme Court dated 09.08.2012 in Bhopal Gas Peedith

Mahila Udyog Sangathan & Ors. Vs. Union of India & Ors: Civil

Appeal Nos. 3187-3188 of 1988.1 After transfer the Writ Petitions

were registered as O.A. No. 26/2013 (SZ), O.A. No. 27/2013 (SZ)

and O.A. No. 28/2013 (SZ), respectively. These cases again got

transferred to the Principal Bench of the Tribunal where they got

registered as OA No. 578/2018, O.A. No. 579/2018 and O.A. no.

580/2018.

2. Also, Writ Petition No. 22933 filed before the Karnataka High got

first registered as Appeal No. 51 of 2012 after transfer to the

National Green Tribunal, Southern Zone at Chennai after its transfer

to the Principal Bench of the Tribunal which later got registered as

Appeal No. 176/2018.

1
(2012) 8 Supreme Court Cases 326
2
3. In aforesaid O.As, the Applicant has assailed the grant of

Environmental Clearance dated 20.03.1997 and its extension

permitted vide order dated 16.04.2002 issued by the Ministry of

Forest, Environment and Climate Change (MoEF&CC), the

Respondent No.1, in favour of the Respondent No. 5, the Project

Proponent, M/s. Udupi Power Corporation Ltd., which was formerly

M/s. Nagarjuna Power Corporation Ltd. (NPCL). Also challenged is

MoEF&CC letter dated 31.01.2005 by which letter dated 05.10.2004

cancelling the EC dated 20.03.1997 was superseded, holding that

the EC dated 20.03.1997 continued to be valid.

4. In Appeal No. 176/2018, the Appellant has specifically assailed

Environmental Clearance dated 01.09.2011 in respect of the same

project referred to by the parties as “Final Comprehensive

Environment Clearance” and also termed as “amended

Environmental Clearance (EC)” granted by the Ministry of

Environment, Forest & Climate Change (MoEF&CC), Respondent No.

1.

5. In Appeal No. 86/2017 (SZ), the very same Appellant in Appeal No.

176/2018 and the Applicant in the Original Applications have

assailed Environmental Clearance (EC) dated 01.08.2017 issued by

the MoEF&CC, Respondent No. 1, in favour of the Respondent No. 5,

M/s. Udupi Power Corporation Ltd., for expansion of the existing

2x600 MW thermal power plant (Phase-I) by addition of 2x800 MW

(Phase-II) at Padubidri Industrial Area in village Yellur which are

subject matters of other proceedings referred to above.

6. For convenience, we may first deal with the Original Applications

being O.As No. 578/2018, 579/2018 and 580/2018 together as

common questions have been raised in assailing the setting up of

1000 MW thermal power project in Yellur, Karnataka by the

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 Respondent No. 5 on the strength of the Environmental Clearance

dated 20.03.1997.

7. We may observe that although we are dealing with the Original

Applications and the Appeals in three segments I, II and III in the

manner that will follow, there will be overlapping of facts in the

findings as issues raised relate to the same thermal power project

and the periodical enhancements of its capacity. While deciding

Appeal No. 176/2018, much of the questions raised in the Original

Applications have been dealt with in order to avoid repetition.

I. O.A. Nos. 578/2018, 579/2018 and 580/2018

8. The petitioner is a registered Society under the provisions of

Societies Registration Act and its members comprise of residents of

Nandikur, Yellur, Santhur, Palimar, Padebettu, Nadsal and other

neighbouring villages in the District of Udupi, Karnataka. The

Committee has been campaigning for the cause of protection of

environment and raising concerns arising out of establishment of

highly polluting and large scale industries in the region as well as

the threat caused by such activities to the environmentally sensitive

Western Ghats and the imperative need for its protection and

conservation.

9. The primary cause agitated by the Applicant is the manner in which

the MoEF&CC had granted Environment Clearance (EC) to the

Respondent No. 5, M/s Nagarjuna Power Corporation Ltd., for a

1000 MW coal based power station near Padubidri presently in the

Udupi, Karnataka, on 20.03.1997.

10. Shorn of the details and facts unnecessary for disposal of the cases

and briefly stated, the case of the Applicants and the Appellants is

that initially M/s. Nagarjuna Fertilizer and Chemicals Ltd. (NFCL)

had proposed a 2 MT/annum capacity steel production industry

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 with a captive power generation plant of 1000 MW at the same site

in Mangalore Taluk as per Government order dated 15.11.1995,

which later was permitted to be shifted to Yellur, Santhur, Padebetu

and Thenka villages in the year 1995-1996 by the Karnataka

Industrial Areas Development Board (KIADB). It is alleged that the

5th Respondent power project, is neither location-specific nor load-

specific nor environmental friendly which is in violation of the new

IPP policy dated 08.01.2001 to which the said respondent was

subject to.

11. The Respondent No. 3, Karnataka State Pollution Control Board

(KSPCB), granted clearance on 19.03.1996 based on a Regional

Environment Impact Assessment (REIA) for the site and, the fact

that the clearance was granted without making reference to any date

or the name of the agency which had carried out the studies, raised

serious doubts on the very existence of the REIA in respective of

Yellur and the neighbouring villages. It is alleged that Yellur village

had never been a part of approved location of the two other thermal

power projects proposed by NTPC and Cogentrix and, therefore,

Part-I of the letter granting clearance which states that it is located

within such area for which KSPCB, Government of Karnataka and

the Government of India had cleared the project earlier, was

incorrect and misleading. No Cumulative Impact Study had been

undertaken for the combined requirement of 50,000 tonnes of coal

estimated to be used in the various power projects proposed in the

area.

12. The conditions imposed in the Environmental Clearance granted by

the MoEF&CC was inadequate for protection of the interest of the

people of the region. Specific mention in this regard has been made

to conditions no. 1, 2, 3, 4, 5 and 10. Even then the conditions so

prescribed have not been complied with.

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13. It is contended that the details of the project, particularly the plant

emissions, its impacts and measures of mitigation, have not been

disclosed to the public. The Rapid Environmental Impact

Assessment (REIA), which KSPCB claimed to have been carried out

by the proponents prior to the clearance by KSPCB on 19.03.1996,

had not been put up for public debate in public interest as required

under the EIA Notification nor was a public hearing held. Also, no

opportunity was given for filing representation as provided under

Section 29 of the now defunct Electric (Supply) Act, 1948.

14. It is alleged that the Respondent No. 5 plant would pose serious

threat to the Western Ghats which is considered to be ecologically

sensitive and to the rivers and estuaries, would impact the Arabian

Sea which is rich in aquatic resources, underground aquifers,

endanger agriculture, crops and vegetation, would be hazardous to

human health, etc.

15. It is then stated that as the Environmental Impact Assessment

Notification, 1994 issued by the MoEF&CC under the provisions of

Environment (Protection) Act, 1986 as amended, specifies that “the

clearance granted shall be valid for a period of five years from

commencement of the construction or operation of the project”, the

clearance issued in this case to the 5th Respondent on 20.03.1997

lost its validly on 19.03.2002 as no construction work had started

within the stipulated period of five years. In the circumstances, the

5th Respondent ought to have obtained fresh Environmental

Clearance before proceeding with the project. It was revealed only

on 08.06.2005 in their submission to NEAA that the 1st Respondent

had granted two years’ extension of the Clearance on 16.04.2002

regarding which the 1st respondent remained silent in their letter

dated 01.02.2005 for unknown reasons. The original Environmental

6
 Clearance having lapsed on 19.03.2002, the extension granted on

16.04.2002 was wholly illegal and non-est.

16. It is stated that in view of the change in law on 10.04.1997 making

it mandatory to hold public hearing before grant of such a

Clearance, it was incumbent upon the 1st Respondent to have

insisted upon the 5th Respondent to file a fresh application for the

purpose. However, by exercising a non-existent power, the 1st

Respondent has extended favour to the 5th Respondent. It is

submitted that even if such power is assumed to exist, the 1st

Respondent, could have granted the extension only if the

requirements of the law as it existed on the day of grant of extension

were fully complied with. As the mandatory public hearing was

admittedly not held, the grant of extension was totally illegal and

violative of the provisions of the Environment (Protection) Act, 1986.

17. After grant of the approval by the 1st Respondent in the year 1997,

there were several changes in the proposed scheme including the

change of location, sources of water, proposal to put up desalination

plant, etc. Considering this, the fact that requirement of mandatory

public hearing had not been satisfied and in view of the

amendments to the applicable laws, the MoEF&CC should have

directed the project proponent to apply afresh for the Clearance.

18. It is emphasized that shifting of the project location to the present

site from the one earlier identified at Tokur, Bykampadi and other

villages in Mangalore Taluk for which REIA had been conducted

rendered the Environmental Clearance unsustainable in law. It is

stated that the project of the 5th Respondent has been located at a

place different from the one permitted in the Environmental

Clearance and quite different from the one for which EIA study had

been conducted. It is asserted while the EIA study mentions the site

as Nandikur, Environmental Clearance mentions it as Padubidri and

7
 the project is actually located at Yellur. Various documents have

been referred to substantiate this submission of which some of them

are (i) REIA’s study submitted by KSPCB in 1996 indicating the

location as near Nandikur village situated around the approximate

coordinate of latitude 130 8’ 54” N and longitude 750 48’ 8.5” E with

the site has been located near Padubidri about 37km N from

Mangalore city; (ii) The pre-feasibility report dated January, 1996

indicating the same facts, Vicinity Plan 1996 showing Nandikur as

project site; (iii) Environmental Clearance dated 20.03.1997

indicating project being at Padubidri near Mangalore; (iv) Consent to

Establish dated 31.08.2005 by which Consent to Establish has been

granted to the Respondent No. 5 at Yellur and Santhur villages in

Udupi Taluk.

19. It is thus contended that the 5th Respondent had shifted the plant

location illegally to Yellur which had earlier been identified as

sensitive by the MoEF&CC. It is further urged that as the validity of

the Environmental Clearance dated 20.03.1997 issued under the

EIA Notification, 1994 which was for five years had expired, and

during which period the 5th Respondent had not commenced with

the construction activity. the MoEF&CC, vide order dated

05.10.2004, cancelled the Environmental Clearance directing the

Respondent No. 5 to submit application for fresh Environmental

Clearance. However, by a personal communication dated

31.01.2005, a Director of the Ministry declared that the

Environmental Clearance dated 20.03.1997 continued to be valid

which according to the Applicant was patently illegal and contrary to

the EIA Notification. The Respondent ought to have applied afresh

for clearance and subjected to fresh appraisal based on public

hearing and scientifically prepared reports considering the

environmental setting obtaining in the year 2004.

8
20. Based on the aforesaid principal facts and circumstance, the

Applicant has prayed inter alia for directions upon the Respondent

Nos. 1 & 2 to carry out an independent study on the carrying

capacity on the environment of the Dakshina Kannada region and

Udupi Districts and to quash the letter dated 31.01.2005 of the

MoEF&CC reviving the Environmental Clearance dated 20.03.1997.

21. It is of relevance to note that the Applicant had filed an amended

O.A. inserting some more facts pursuant to the leave granted by the

Tribunal vide order dated 06.03.2017 in addition to the facts that

have already been dealt with which are as follows:

i. The transmission lines for evacuation of power from Yellur

to the main grid at Hassan through the Western Ghats

which would consume large tracts of dense forest, was

neither economical nor environmental friendly but was

ecologically disastrous. The REIA study also does not

assess and quantify the effects of the transmission lines or

that of the Captive Coal Jetty being built at the NMPT.

ii. It is stated that the power line component of the project

would consume 429.21 acres of forest in the Western

Ghats region.

iii. The Environmental Clearance for a Captive Coal Jetty

actually related to Deep Draft Multipurpose berth at NMPT

which is already in operation since 14.02.2006. This was

in contravention to Condition No. III A) ii) which stipulated

that the industry shall obtain separate clearance for the

dedicated Jetty at NMPT for unloading of coal which the

Respondent No. 5 had undertaken to comply. Therefore,

there is no Environmental Clearance obtained by the said

Respondent for the dedicated Jetty.

9
22. It is stated that fly-ash generated by the thermal power plants

contain substances which are naturally radioactive and coal ash is

more radioactive than nuclear waste. Nuclear radiation emitted by

thermal power plants is more than what is emitted by nuclear power

plants. This aspect has not been studied before the grant of the

Environmental Clearance when the deleterious effects of fly-ash,

coal ash and nuclear radiation from thermal power plants have been

duly considered by the Tribunal in Appeal No. 7/11(T), wherein vide

order dated 20.09.2011 directions had been issued upon the

MoEF&CC to look into the long term impacts caused by nuclear

radiation from the thermal power plants by undertaking scientific

long-term study.

23. The MoEF&CC, Respondent No. 1, had filed its Statement of

Objections on 10.01.2006 before the High Court of Karnataka in

W.P. No. 21439/2005 (GM-POL) when it was pending there and no

further affidavit was filed after it was transferred to the Tribunal.

24. It is contended on behalf of the Ministry that the applicant had

earlier challenged the setting up of a 2420 MW thermal power

project and ash pond by the National Thermal Power Corporation at

Nandikur, Yellur, Nitte, Kanthavara, Inna, Palimaru and other

villages by filing W.P. Nos. 1112/1991 and 24197/1990, which were

dismissed on 06.08.1991. Again W.P. No. 28651/1996 was filed by

the Applicant challenging setting up of 1000 MW power plant by

Mangalore Power Company. In both the Writ Petitions, the

Applicant had raised the very same issues as raised in the present

application. According to the MoEF&CC, although the High Court

held that none of the objections raised was sufficient to quash the

clearance granted to the Mangalore Power Company, a direction was

issued requiring the MoEF&CC to take into consideration the

reports of DANIDA and NEERI as well as the views expressed by one

10
 Mr. Sagaradhara on the 1000 MW thermal power project at

Nandikur, Dakshina Kannada District, Karnataka and to complete

the exercise within a period of three months from 29.08.1997. In

due compliance of the directions, the reports of the DANIDA and

NEERI were examined and the report of Mr. Sagaradhara on the

power project was also looked into. The MoEF&CC also considered

undertaking a carrying capacity studies. It was only thereafter that

the Ministry came to the conclusion that adequate steps had been

taken to ensure environmental protection by stipulating necessary

protection measures for minimising environmental impact due to the

propose power project. A compliance affidavit had accordingly beeny

filed to that effect before the High Court. The earlier power project

with 2420 MW proposed in Nandikur village was later bifurcated

into two, i.e., one in favour of Cogentrix of USA and the other in

favour of Respondent No. 5. Proposal for 1000 MW Coal Based

Thermal Power Project was submitted by the Respondent No. 5 in

June, 1996 with all necessary documents including a Rapid

Environmental Impact Assessment and Environmental Management

Plan. The Expert Committee for Environmental Impact Assessment

of thermal power project after consideration of the proposal,

recommended the project for clearance in October, 1996, which was

followed by grant of Environmental Clearance on 20.03.1997 with

specific conditions. It is stated that the power project does not fall

within the Coastal Regulation Zone. It is contended that the

application is hit by the principles of res judicata and, that Yellur,

according to the provisional site clearance issued by the State PCB,

has been directed not to be used as ash pond area.

25. On the extension of EC granted, the Ministry contends that as the

inspection reports submitted by Dr. Harapanahalli, Director of the

Regional Office, MoEF&CC at Bangalore, had indicated that

construction had come up at the project site during the validity of

11
 the EC before March, 2004 which was based upon documentary

evidence in the form of permission from the Karnataka Industrial

Areas Development Board (KIADB), work orders issued to the

contractor and the bill raised by the contractor, the EC dated

20.03.1997 remained valid.

26. Responding to the Applicant’s assertion regarding the want of public

hearing, it has been stated that such requirement became

mandatory only after 10.04.1997 and, therefore, did not apply to the

project in question.

27. Against the question raised as regards carrying capacity, it is sated

that as a study conducted by the Department of Ecology and

Environment, Government of Karnataka and DANIDA, Denmark

reflected the need for integrated management of natural, human and

economic resources in the Dakshina Kannada District, Karnataka,

the Ministry had written to the Government of Karnataka in

September, 1996 to conduct carrying capacity studies of the

Dakshina Kannada District, Karnataka as early as possible to assess

potential for future industrial growth in the region. The impact

analysis for the project had been done based on the REIA study,

undertaken by the project authorities and under the EIA

Notification, 1994. This, according to the Ministry, was adequate for

consideration of the project from the environmental angle.

28. In order to control emission of sulphur dioxide, etc., by burning of

coal, the Karnataka State PCB has laid down several conditions like

provision of chimney with adequate height, FGD to control sulphur

dioxide, to limit the particles less than 150 mg/Nm3 using

Electrostatic Precipitator, use of Low NoX burner to control NoX and

other gaseous emission. The measures prescribed would ensure

restriction of pollution load within the prescribed limits and,

12
 therefore, would not have adverse impacts on the Western Ghats

which are 40-50 kms from the project site.

29. The utilization of the fly ash being a part of the Environmental

Management Plan, the project authorities have been directed to

ensure 100% utilization of fly ash by the end of 10th year as

stipulated in the EC. Adequate measures have also been prescribed

for avoiding contamination of ground water directing ash pond area

to be lined by impervious liners. The treated effluent is discharged

at a designated outfall point into the Arabian Sea off the shore.

Thus eliminating the possibility of contamination of ground water in

the estuarine region. Desalination plant would be installed to meet

the required water for the plant. The intake and outfall points would

be in accordance with the advice of the National Institute of

Oceanography, Goa/CWPRS, Pune, who has been assigned the task

of designing diffuser system for ensuring proper dispersed of the

effluents with minimum impact on marine life.

30. It is emphasised that the 1000 MW Coal Based Power Project was

thus examined from the environmental angle and clearance was

accorded stipulating a number of safeguard measures further

contending that the comprehensive EIA studies which was in the

process of preparation, would be examined by the Ministry for

stipulating additional conditions.

31. In its reply the Respondent No. 5, M/s. Udupi Power Corporation

Ltd., substituted vide order dated 21.03.2013 in M.A. No.

203A/2013, while dealing with the substantive part of the

allegations, it has been stated that there is no change in the location

of the project as alleged by the Applicant and the allegation is, in

fact, misconceived. In the 1996 REIA report, the location of the

project has been shown as “near Nandikur” and not “in Nandikur”.

Nandikur is a large area and one single coordinate of Nandikur was

13
 given as the place locator close to which the plant was to come up.

At the relevant point of time, there was no system or guidelines

requiring furnishing of coordinates of the plant boundaries and only

one coordinate of the location near to which the plant was to come

up was required to be given. The REIA report specifies that the

KIADB had identified the land for the project in Padubidri Industrial

Area covering the land in villages of Nandikur, Palimar, Inna, Tenka

and Yellur and further, that the plot of land identified for the project

site falls in that area and, therefore, the location of the project

covering village Yellur had been submitted for Environmental

Clearance.

32. It is contended that although the requirement of land in the REIA

report of 1996 for the project was shown as 1359 acres,

Environmental Clearance was granted in 1997 for 550 ha which is

equivalent to 1539 acres. This was reduced to 590 acres that

included 420.25 acres of the main plant area and the rest for ash

ponds and pipeline corridor. The 5th Respondent is not a site

specific project as contemplated under para 2 (II) of the EIA

Notification, 1994 category of which only would require site specific

clearances. Thermal power plants are covered by para III of the

Environmental Clearance which contemplates “project clearance”

and not “site clearance” as would be evident from para 5 of the

Explanatory Note Regarding Impact Assessment Notification dated

27.01.1994. A 6 km radius study from the project site was thus

undertaken for study of buffer zone and 25 km study to predict the

air quality concentration on the Western Ghats apart from carrying

out a Modelling study to predict the impact of the project and

Ground Level Concentration (GLC) in predominant wind directions

which is a method accepted even today. The EIA study had been

conducted keeping these factors in view.

14
33. Letter dated 05.10.2004 revoking the Environmental Clearance led

to a representation dated 20.10.2004 being submitted by the

Respondent No. 5 to the MoEF&CC for reconsideration and review of

the decision conveyed vide letter dated 05.10.2004 which then

resulted in the MoEF&CC deputing their Regional Officer for a site

visit. As a consequence of a Site Inspection Report dated 06.12.2004

pursuant to such site visit, request for withdrawal of the letter dated

05.10.2004 cancelling the EC was submitted which was followed by

the several letters to the same effect.

34. It is contended that the letter dated 05.10.2004 withdrawing the

Environmental Clearance was issued in ignorance of the fact that

construction activity at the site had already been taken up in 2003

and, therefore, question of the validity of the Environmental

Clearance having expired did not arise. In consideration of this, the

MoEF&CC had issued the impugned letter dated 31.01.2005

conveying that the Environmental Clearance granted to the

Respondent No. 5 project continued to be valid.

35. It is urged that as a consequence of letter dated 31.01.2005, the

project has progressed to a considerable extent after investment of

more than ₹6,288/- crores as on 31.03.2016. Commercial operation

began on 11.11.2010 with the first unit of the project being

synchronized to the grid followed by the second on 19.08.2012. A

“Comprehensive Environment Clearance” dated 01.09.2011 merging

all Environmental Clearances granted from 20.03.1997 to

01.09.2011 has also been granted. So far as the matter relating to

the transmission lines is concerned, it is stated that it was a subject

matter of Appeal No. 10/2012 before this Tribunal which has since

been disposed of on 07.03.2012. As regards the question raised in

respect of the Coal Jetty is concerned, it is contended that firstly, it

is not a part of present proceedings and secondly, the

15
 Environmental Clearance granted for the Coal Jetty has not been

challenged in the present proceedings and is also barred by the law

of limitation.

36. Against the question raised with regard to carrying capacity of the

area having not been undertaken before the Environmental

Clearance was granted, it is contended that it was for the

Government to do so and the Respondent No. 5 could not be faulted

if such study had not been undertaken. The EIA Notification,

according to the Respondent, does not stipulate requirement of

Carrying Capacity Study. On the question raised in respect of

radiation activity in the coal and ash, it is stated that there is no

standard prescribed therefor by the prescribed statutory authorities.

However, periodical analysis for radioactivity in coal and fly-ash are

being carried through BARC Bombay laboratory.

37. From the assimilation of facts stated in the affidavits filed by the

Respondent No. 5, the Project Proponent, we find that objections

have also been taken on the question of limitation contending that

the orders being challenged by the Applicants dates as far as in the

years 1995, 1996, 2004 and 2005. The Respondent contends that

Writ Petitions filed by the Applicant in the High Court, more

particularly W.P. No. 1112/1991 and connected petitions

challenging the Clearances granted by the MoEF&CC earlier, had

been dismissed. The present project is a part of 2000 MW super

thermal power station proposed at Yellur, Nittur, Nandikur and

other villages which had been cleared by the MoEF&CC on

06.09.1991, and the same had been challenged earlier in W.P. No.

1112/1991 and other connected petitions but, as stated earlier, had

been dismissed. It is stated that half of the project had been

awarded to Mangalore Power Company (Cogentrix) and other half to

the Respondent No. 5. Both projects had been cleared but the one

16
 granted in favour of the Cogentrix had been challenged in W.P. No.

790/1997 which, however, was later dismissed with a direction

upon the MoEF&CC to re-examine the matter taking into account

reports prepared by experts from DANIDA and NEERI as well as the

views expressed by one expert, Mr. Sagaradhara. The MoEF&CC

had accordingly re-examined the project which led the High Court to

conclude that the Clearances, were in order. While Cogentrix

withdrew from its portion of the project, the Respondent No. 5 had

carried forward its portion. Against 2420 MW power plant, only

1015 MW power plant was being setup by the Respondent No. 5.

The Clearances were granted to the project by the MoEF&CC and

the KSPCB only after detailed studies. A Rapid Environment Impact

Assessment (REIA) involving site data collection of one season (3

months) was undertaken to collect the baseline data along with the

studies on anticipated emission by the proposed plant bringing

within its ambit the emissions of other plants/projects in the

vicinity. The report includes consideration of the area, its

topography, land usage, socio-economic factors, etc. These were

analysed by the State PCB, and finally examined by the MoEF&CC

before the Environmental Clearance was granted.

38. It is further stated that while taking up the project, due care had

been taken with regard to ecological fragility of the area in the light

of the CRZ, likely emissions due to discharge of solid waste or

gaseous matters or contamination of air and water. Specific

conditions have been imposed to deal with these aspects in the

Environmental Clearance. The authorities have also taken due note

regarding the utilization of coal and emission of sulphur content. It

is stated that the coal being utilized would be imported and,

therefore, contamination would be limited and the emission would

be controlled by installing suitable devices and meteorological

control system setup to monitor emissions discharged into the air

17
 and water. Precautions have been taken to deal with the fly ash

disposal by setting up a separate yard and for its utilization by

adopting suitable methods. Carrying Capacity Study having not

been undertaken by itself would not amount to such a grave

infirmity so as to nullify the Clearances. Environmental Impact

Assessment for the present project was carried out in the year 2003

and the location of the site has been clearly shown as Yellur, Tenka,

Padubidri and Santur. It would be evident from the REIA of 1996

that the EIA studies were undertaken in respect of the project site in

due compliance of the provisions of the EIA Notification dated

27.01.1994 and the Environment (Protection) Act, 1986. It is also

stated that clause (x) of the Environmental Clearance dated

20.03.1997 prescribes the manner in which the fly ash generated by

the Respondent No. 5 would be utilized for which a period of 10

years has been provided.

39. Pressing the O.As it was argued by the Learned Counsel for the

Applicants that the limitation provisions contained in the National

Green Tribunal Act, 2010 will not apply to the present application

and the respondents cannot non suit the applicants by claiming so

as the present matters has been transferred from the High Court by

consent of parties. It is emphasized that the original clearance

granted on 20.03.1997 had been cancelled on 05.10.2004 but was

illegally reinstated on 31.01.2005. While the Original Applications

seek to assail the environmental clearance dated 20.03.1997 as

amended, in Appeal No. 176/2018, the final Comprehensive

Clearance issued to the respondent is under challenge, all of which

are pending consideration before this Tribunal.

40. The primary contentions which the Learned Counsel has sought to

raise is the illegal shifting of the project location details of which

have already been discussed earlier and, therefore, need not be

18
 repeated. However, it was seriously contended that by the shifting

the Respondent has established the power plant at Yellur which had

been earlier rejected even for setting up of an ash pond as the area

was considered to be very fertile and supporting various crops and,

the discharge of saline mist from the cooling tower and discharge

from the stacks had caused destruction to the region adversely

affecting the health of the people and the livestock.

41. In support of the aforesaid contentions, Learned Counsel referred to

the REIA study of 1996, the prefeasibility of January, 1996, the

Vicinity Plan of 1996, application dated 20.02.1996 for Site

Clearance by the KSPCB, Site Clearance dated 19.03.1996 by

KSPCB, Site Clearance issued to Mangalore Power Company dated

25.07.1995, application dated 20.06.1996 for Environmental

Clearance submitted by the project proponent, Environmental

Clearance dated 20.03.1997, etc.

42. It is contended that the 5th Respondent has illegally, without

permission, without any impact assessment studies and appraisal

whatsoever, has shifted the plant location illegally to Yellur which

happens to be a site recognised by the MoEF&CC to be sensitive

where locating even an ash pond was held to be unacceptable.

43. It is also submitted that the thermal power plant could not have

been permitted by the Ministry in the Yellur village and even the

clearance specifically mentions the location as Padubidri. Therefore,

the 5th Respondent had made itself liable for the offence punishable

under Section 15 of the Environment (Protection) Act.

44. It is then contended that the Environmental Clearance dated

20.03.1997 issued under the EIA Notification, 1994 was valid for a

period of 5 years. The 5th Respondent having failed to commence or

to take up construction activity during the period of validity resulted

19
 in the MoEF&CC cancelling the EC vide order dated 5.10.2004

directing the project proponent to obtain a fresh clearance.

However, by a personal communication of a Director of the Ministry

dated 31.01.2005 illegally declared that the Environmental

Clearance dated 20.03.1997 continued to be valid.

45. In support of the above submissions the Learned Counsel referred

inter alia to Environmental Clearance dated 20.03.1997, order of the

MoEF&CC dated 16.04.2002, order no. J-13011/23/ 96-IA.II(T)

dated 05.10.2004, letters dated 20.11.2003, 22.03.2004 and

19.05.2004 from Nagarjuna Power Corporation Ltd. to the

MoEF&CC, letter dated 31.01.2005 from Dr. Indrani

Chandrashekhar, Director, MoEF&CC to Shri K.S.

Balachandrashekharan, Site Inspection Report dated 06.12.2004 of

the Additional Director (S) of the MoEF&CC, letter dated 02.02.2005

of the 5th Respondent to the Secretary Vellur Grama Panchayat,

letter dated 12.11.2004 from the project proponent to the SP, Udupi

District, letter dated 17.12.2004 from KIADB to the project

proponent and possession certificate dated 15.12.2004 issued by

KIADB.

46. It is contended that as the project proponent did not commence with

the project activity within the validity of the clearance, the

MOEF&CC had correctly cancelled the clearance after validating it

once. The contention of the project proponent that they had

constructed site office was patently false and was based on evidence

that were fabricated.

47. It is further submitted that the reinstatement of the Environmental

Clearance was patently illegal and contrary to the EIA Notification.

Further, as the present project had been cleared without a public

hearing, the order cancelling the Environmental Clearance dated

05.10.2004 was justified also on that ground. The EC having thus

20
 been cancelled, the project proponent ought to have applied afresh

for clearance and, undergone a proper public hearing and an

appraisal of the impact of the project based on scientifically

prepared reports taking into consideration the existing

environmental setting as in 2004.

48. In his reply, the learned Senior Counsel appearing for the

Respondents, at the outset raised preliminary objections on the

ground of limitation, delay, laches and constructive res judicata. It is

submitted that under Section 11 (1) of the National Environment

Appellate Authority Act, 1997, an appeal against Environmental

Clearance is required to be challenged within 30 days. However,

Appeal against the EC dated 20.03.1997 was filed before the

National Environment Appellate Authority only on 28.04.2005

which, however, was dismissed vide order dated 13.06.2005.

Similarly, the challenge to the extension dated 16.04.2002 is also

barred by time. According to him, this Tribunal being a successor to

the National Environment Appellate Authority, it would not be

permissible for Tribunal to sit in judgment over the decision of a

coordinate Court and, therefore, the Application was barred by the

principles of constructive res judicata. It was argued that under

Section 38(5) of the National Green Tribunal Act, 2010, all the cases

filed and pending before the National Environment Appellate

Authority on establishment of Green Tribunal alone stood

transferred and not matters which the National Environment

Appellate Authority had already dismissed.

49. It is urged that under Section 11(1) of the National Appellate

Authority Act, 1997, an appeal against Environment Clearance

requires to be challenged within 30 days. However, it was only on

28.04.2005 that the Applicant challenged the Environment

Clearance dated 20.03.1997.

21
50. The challenge to NOC issued by the State PCB on 19.03.1996 and

the Consent for Establishment dated 31.03.2005 are also barred by

laches as well as limitation both being appealable orders under

Section 31 of the Air (Prevention and Control of Pollution) Act, 1981

and Section 28 of the The Water (Prevention and Control of

Pollution) Act, 1974. The challenge to amendment of Environmental

Clearance dated 09.09.2009 in Appeal No. 176 of 2018, apart from

being barred by time under Section 16 of the NGT Act, 2010, is also

an order passed prior to 18.10.2010, i.e., before the National Green

Tribunal Act, 2010 came into force.

51. It is submitted that in the garb of challenging the Environmental

Clearance dated 01.09.2011, the Applicant has attempted to

indirectly challenge the Environmental Clearance dated 20.03.1997

which, according to the Learned Counsel, is not permitted.

52. On the question of the alleged illegal shifting, the learned Senior

Counsel reiterated that in the Rapid Environment Impact

Assessment, 1996 (REIA study) there is a single coordinate which is

a place locator of the plant considered as centre of the project. The

study area includes Yellur village. Air modelling studies have been

made for the core zone of 6 kms, buffer zone of 25 kms and for 50

km x 50 km to assess the impact on Western Ghats. Padubidri is

not a revenue village but an industrial area notified by the KIADB

which brought within its sweep several acres of land in different

survey numbers. The MoEF&CC while granting the Clearance did

not find significant difference in the coordinates as would appear

from their letter dated 09.01.2009. Referring to the map of the

entire area, it is submitted that the present plant boundary is less

than 600 meters from the said single coordinate.

22
53. On the question of revalidation of expired Clearance, it is submitted

that the letter of cancellation of Environmental Clearance dated

05.10.2004 was issued without carrying out a site inspection which

would be evident from the letter dated 20.11.2003 which actually

refers to there being construction works on the project such as site

office, construction of road, etc.

54. Adverting to the questions raised with regards to public hearing, it is

submitted that public hearing was made only mandatory vide

Notification dated 10.04.1997 whereas the EC in question pre-dates

this having been issued on 20.03.1997. Referring to the EAC

meetings held in January to April, 2009, it is submitted that it has

been clearly recorded in the minutes that “the Committee considered

the proposal in terms of para 7(ii) of the EIA Notification, 2006 for

due diligence. It was stated that the project is located in notified

industrial area and hence it is exempt from public hearing.”

55. On the Carrying Capacity Study, it is submitted that Government of

Karnataka vide order dated 03.12.1999, taking note of the EIA

Notification providing for public hearing, on 10.04.1997, withdrew

the condition in the Government order dated 29.12.1995.

56. Since the arguments were confined to the above questions, we need

not deal with the other aspects which would not be relevant in the

present circumstances for disposal of the case.

57. We have heard the Learned Counsel for the parties and considered

the pleadings and the documents on record. Writ Petition No.

21439/2005 (GM-POL-PIL), renumbered presently as O.A.

578/2018, was filed in High Court of Karnataka on 09.09.2005 inter

alia challenging Environment Clearance (EC) dated 20.03.1997 and

the Site Clearance dated 09.03.1996. Vide order dated 14.03.2007,

interim order was passed by the High Court directing that all further

23
 action taken by the Project Proponents during the pendency of the

Writ Petition would be subject to the result of the Writ Petition. In

the Writ Petition, the Applicant has prayed for quashing of the EC

dated 20.03.1997, for direction upon the MoEF&CC and the State of

Karnataka to carry out an independent study in the Dakshina

Kannada region and Udupi Districts, to declare the Western Ghats

as an ecologically sensitive area and to carry out comprehensive

Environment Impact Assessment (EIA) and for holding public

hearing.

58. Writ Petition No. 2180/2007 (GM-RES-PIL) was filed before the High

Court of Karnataka on 06.02.2007, by two churches situated in

Santhur and Pilar (Mudaragandi) villages questioning the Consent

for Establishment granted to the project by the Karnataka State

Pollution Control Board (KSPCB) for location of dumping in the two

villages overlooking existence of religious places, dense forestlands

and valuable drinking water sources. The grounds assailing the

project are essentially the same as ones in W.P. No. 21439/2005

(now, O.A. NO. 578/2018 (SZ)), the principal being that the project

site being located at Yellur and ash dumping at Santhur. The

prayer sought for in the Writ Petition is also to declare the Consent

for Establishment dated 13.08.0015 as being illegal. That Writ

Petition also came to be transferred and taken on record of the NGT,

SZ at Chennai on 10.07.2013 and thereafter before the Principal

Bench where it was registered as O.A. No. 579/2018.

59. W.P. No. 11095/2007 (PL) was filed by and on behalf of nine temples

situated in the Udupi District, Karnataka challenging the very same

thermal power project on identical grounds as in W.P. No.

2180/2007 (GM-RES-PIL) in respect of location of the project at

Yellur and ash dumping in Santhur on various grounds. This Writ

Petition came to be transferred to the Tribunal and taken on its

24
 records vide order dated 10.07.2013 before being transferred to the

Principal Bench in New Delhi where it was registered as O.A. No.

580/2018.

60. The records reveal that O.A. Nos. 579/2018, 580/2018 and Appeal

No. 176/2018 were being taken up together with O.A. No. 578/2018

and heard analogously together with effect from 11.10.2013 and

have been continuing to proceed in that manner since then by

common orders.

61. The facts and circumstances in the O.As give rise to issues which

are dealt with in the manner that follows hereafter:

i. Are the cases barred by law of limitation?

Referring to the opening observations of this judgement it is

evident that O.A. No. 578/2018 is traced to O.A. No. 26/2013

(SZ) (THC) registered by NGT, SZ, Chennai after the case was

received by transfer from the High Court of Karnataka vide

order dated 30.11.2012. The transferred case was originally

W.P. No. 21439/2005 (GM-POL-PIL) which inter alia seeks for

quashing the communication of the Director of the MoEF&CC

dated 31.01.2005 revalidating the Environmental Clearance

dated 20.03.1997 as well as Consent for Establishment dated

31.08.2005.

As it appears from the above, O.A. Nos. 578/2018, 579/2018,

580/2018 and Appeal No. 176/2018 are cases that were

transferred by the High Court of Karnataka to the Tribunal

during its pendency vide common order dated 30.11.2012. It

may be relevant to note that when these cases were filed before

the High Court, the NGT Act, 2010 had not been enacted and,

therefore, the Tribunal had not come into existence. The

transfer took place as a consequence of the order dated

09.08.2012 passed by the Supreme Court in Bhopal Gas

25
 Peedith Mahila Udyog Sangathan & Ors. Vs. Union of India &

Ors., (supra).2

The provisions of this Act, therefore, cannot be made applicable

to these cases. The High Court of Karnataka after taking

cognizance, had been issuing directions were from time to time

and were pending disposal. As the cases were transferred from

the High Court, the Tribunal would exercise the powers vested

in the High Court to the extent applicable having regard to its

jurisdiction.

Notwithstanding the above, it is pertinent to also note that in

the interregnum, EC dated 20.03.1997 came to be cancelled by

the MoEF&CC vide letter dated 05.10.2004 but was revalidated.

Soon thereafter letter dated 31.01.2005 was also challenged

before the National Environmental Appellate Authority under

the extant NEAA Act, the Appellate Authority before the

National Green Tribunal Act, 2010 came into force. On

dismissal of this Appeal solely on the ground of limitation, W.P.

No. 21439/2005 (GM-POL-PIL) was filed before the High Court

assailing the project on several grounds including the dismissal

order followed by several other Writ Petitions on the same

question amongst others. During its pendency, the Writ

Petitions came to be transferred to the Tribunal by a common

order dated 30.11.2012 which continued thereafter before us.

We, therefore, are of the view that the objection on the ground

of the cases being barred by limitation cannot be sustained and

is accordingly rejected.

ii. Was the project proponent (phase-I) shifted illegally to

Yellur and, can the establishment of the power project

2
(2012) 8 Supreme Court Cases 326
26
(Phase-I) at Yellur be said to be at a location for which no

EIA study had been carried out and for which no

Environmental Clearance had been granted?

We have already taken note of the fact that in the statement of

objections of the Respondent No. 5 in O.A. No. 578/2018 which

has also deals with this very question, it has been stated that

the thermal power project is not a site specific project as

provided under Clause 2 (II) of the EIA Notification, 1994 but a

project specific one for which there was no system or guidelines

requiring the furnishing of coordinates of the plant boundaries.

Only one coordinate of the location in order to which the plant

is coming up was required to be given. Section 4 of the REIA

report of 1996 mentions that the plot of land identified for the

project site falls under Tenka, Yellur, Inna, Palimar and

Nandikur villages and, therefore, the location of the project that

was covering Yellur village was submitted for the EC right from

the inception. Thus, a 6 km radius study was done for buffer

zone, 20 km studies for predicting air quality concentration on

the Western Ghats, Modeling Study to predict the impact of the

project and Ground Level Concentration (GLC) in predominant

wind direction were carried out. It is further contended that

Yellur village was not being used for disposal of ash pond

direction to which effect had been issued by the KSPCB in the

conditions of Site Clearance dated 19.03.1996. Several

documents and maps placed in support of these submissions

have been examined.

We have also considered the stand of the MoEF&CC which is

revealed from letter dated 09.01.2009 with regard to transfer of

EC from M/s. Nagarjuna Power Corporation Ltd. to M/s. Udupi

Power Corporation Ltd. granting EC for the project from 1015

MW to 1200 MW where it has been stated as under:

27
 “2. It has been noted from the letter No. PCB 200 HPI-
208/847 dt. 1.12.2008 from KSPCB that the site
location of Udupi Power Corporation Ltd (Previously
M/s. Nagarjuna Power Corporation Limited) though
KIADB and the current site of the project is one and the
same for which the environmental clearance has been
issued by MoEF on 20.3.1997. Further, it has also
been noted from the letter dt. 18.12.2008 from KSPCB
that the coordinates of the site for which environmental
clearance was issued were 13’ 08’ 54” N and 74’ 48’
8.5” E and coordinates of the project site now are 13’
09’ 8” N and 74’ 47’ 37” E, whose difference is not very
significant.

3. The Govt. of Karnataka, Forest, Ecology and

Environment Dept. Vide letter No. FEE 136 ECO 2008
dt. 12.12.2008 have also informed that the location of
the 1015 MW project by M/s. Nagarjuna Power
Corporation Ltd. for which environmental clearance has
been issued by MoEF and the site proposed to be taken
over by M/s. Udupi Power Corporation Ltd. are one and
the same.”

We have further examined the relevant documents and maps

placed before us. Having scrutinized those, we find the

contention that the project site had been illegally shifted to

Yellur does not appear to be correct. We also do not agree that

the establishment of power project at Yellur was illegal as no

EIA study had been made in respect of the area and for which

no EC had been granted and is accordingly rejected. However,

the question as to whether the EIA or REIA undertaken was in

accordance with the EIA Notification, 1994 shall be dealt with

while considering Appeal No. 176/2018 as the facts are

interlinked.

iii. Is the grant of extension of the Environmental Clearance

dated 20.03.1997 vide letter dated 31.01.2005 through a

communication of a Director of the Ministry superseding

the order of cancellation dated 05.10.2004 issued by the

MoEF&CC valid in law?

We have examined the response of the MoEF&CC to ascertain

the factual position in this regard. It is stated that the report of

the Director, Regional Office, MoEF&CC at Bangalore by which

it has categorically been mentioned that constructions had

come up at the site during the period of validity of the

28
 Environment Clearance. This fact, according to the Ministry,

was supported by the KIADB, various work orders issued to the

contractors and bills raised by the contractor. It has also been

stated that as the construction activity had commenced before

March, 2004, the EC continued to be valid. We may refer to

paragraph 20 of the statement of objections filed by the

Ministry filed in O.A. No 578/2018 which is reproduced below:

“20. Para 22: Dr. Harapanahalli, is Director of this

respondent’s Regional Office at Bangalore. There is no reason
for this respondent to doubt the report given by its officer more
so when the same is supported by the documents such as the
letter of the owner of the land where the construction has come
up, the permission from the Karnataka Industrial Area
Development Board, the work orders issued to the Contractor
and the bills raised by the contractor. These documents have
been produced by this respondent before the National
Environment Appellate Authority. As the construction activity
has commenced before March 2004, the environment clearance
remains valid. As per the EIA notification 1994 public hearing
was made mandatory only after 10.4.1997, Project cleared
before this date did not require public hearing.”

62. As will appear from the above extract of MoEF&CC’s statement of

objections, it is silent on the issuance of letter dated 05.10.2004

cancelling the EC date 20.03.1997 and the impugned letter dated

31.01.2005 recalling the cancellation. However, a careful

examination of the letter dated 05.10.2004 reveals that the matter

pertaining to the validity of the EC was being deliberated between

the project proponent and the MoEF&CC. Letters of the project

proponent dated 20.11.2003, 22.03.2004 and 19.05.2004 were

found to have been referred to before conveying that the EC stood

cancelled. As the letter is of crucial relevance, we may reproduce

the contents thereof below:

“ Dated: 5.10.2004
To,
Shri. K.S. Balachandra,
General Manager,
Nagarjuna Power Corporation Limited,
No.510, 3rd ‘A’ Cross, 2nd Main, 3rd Block,
Raj Mahal Vilas-II, Dollars Colony,
Bangalore-560094, Karnataka.

Sub: 2x507.7 MW Coal Based Thermal power Project

at Padubidri near Mangalore, Karnataka of M/s.

29
 Nagarjuna Power Corporation Ltd. Revalidation
of environmental clearance reg.
Sir,
The undersigned is directed to refer to your communication
No. NPCL/B04/2003 dated 20th Nov., 2003, 22nd March, 04, and
19th May, 04 on the above mentioned subject.

This matter has been examined, As per EIA notification No.

S.O.60(E) dated 27th January, 1994 and its subsequent valid for
a period of five years for commencement of construction or
operation. Since there is no commencement of construction or
operation of the project even after revalidation for further period
of two years, and Public hearing has become mandatory since
10th April, 1997, the validity of environmental clearance
accorded to this project on 20th March, 1997 stands cancelled.

You are advised to seek fresh environmental clearance for

this project as per procedure laid down in the EIA Notification
1994 and its subsequent amendments.
(A. DURAISAMY)
DIRECTOR”

63. In the written submissions filed on behalf of the Respondent No. 5, it

is stated that letter dated 20.11.2003 referred to in the letter of the

Ministry dated 05.10.2004 pertain to “construction work on the

Project as a whole meaning EPC Contract post financial closure as

by that time Government had not yet extended payment security (A-

CV- at 56-57).” The Regional Director of MoEF&CC who was

deputed to visit the site did so only on 01.12.2004 and submitted a

report with supporting documents, stating that activities had started

at the spot, such as site office with the consent of the site owner,

approval by KIADB and formation of road. It is also stated that the

Respondent No. 5 had made representations to the Minister,

Director and Joint Secretary of the first Respondent requesting for

review of the decision and to reinstate the EC. The Respondent No.

5 also states that as per official notings in the file, the MoEF&CC

was satisfied with the Regional Director’s spot inspection report

which led to the decision to issue letter dated 31.10.2005.

64. Upon careful consideration of the facts set out above, we find it

reasonable to infer that (i) the Respondent No. 5 had not commenced

construction as the language in the letter dated 05.10.2004 clearly

suggests and (ii) that no public hearing had at all been held before

grant of EC dated 20.03.1997.

30
65. The Minister, MoEF&CC and the Ministry officials had been

approached by the Respondent No. 5 that ultimately led the

Director, MoEF&CC to issue the impugned letter dated 31.01.2005.

We do not find the purported inspection report of the Regional

Director of the MoEF&CC to be so credible as to inspire our

confidence. The D.O. letter recalling the cancellation order issued

by Director, MoEF&CC is also found to be innocuously worded and

bereft of any reason and unclear as to whether or not it had been

written under order of the Government as will appear from a bare

reading of its reproduction below:

“Indrani Chandrasekharan
Director (IA)
D.O. No. J.13011/23/96-I-A-II(T) Part
Tel: 24360662
Fax: 24360734
E.mail: [email protected]

Date: 31st Jan. 2005

Shri Balachandra,

Kindly refer to your letter no. NPCL/BO4/2004 dated 20 th

Nov. 2003, 22nd March, 2004, 19th May, 2004 seeking
clarification regarding validity of the of the Environmental
Clearance granted to Nagarjuna Power Project, Mangalore.

This is to inform you that the Environmental Clearance

granted to you in March, 1997 continue to be valid and there is
no need for conduction a public hearing.

With regards,
Yours sincerely,

(Indrani Chandrasekharan)
Shri. K.S. Balachandra
General Manager,
Nagarjuna Power Corporation Limited,
No.510, 3rd ‘A’ Cross, 2nd Main, 3rd Block Raj Mahal
Vilas-II, Dollars Colony,
Bangalore-560094,
Karnataka.”

66. The reservation expressed by us on the credibility of the inspection

report submitted by the Regional Office of the MoEF&CC and the

letter dated 31.01.2005 of the Director, MoEF&CC stands justified

by the following:

i. The Deputy Development Officer, KIADB conveyed the

approval for construction of project site office only vide letter

dated 17.12.2004.

31
 ii. Possession Certificate was issued on 17.12.2004 by the

KIADB that lands are handed over to the project proponent.

iii. Subsequent to the date of the inspection report, the

Respondent No. 5 had written a letter dated 02.02.2005 to

the Secretary, Yellur Gram Panchayat seeking concurrence of

the land having been handed over by KIADB and to concur

for taking up construction of project site office, guest house,

store and access roads as per sanction plan.

67. The correspondences referred to above quite obviously predates the

Inspection Report which would unambiguously establish that even

as on 05.10.2004 no construction, leave alone site office, had at all

commenced at the project site before March, 2004 as stated by the

MoEF&CC in its affidavit. We may note that the validity of the EC

was to expire on 19.03.2004 having been extended for two years on

16.04.2002 after the initial 5 years’ validity had expired. Thus, it

would be reasonable to infer that the inspection report dated

06.12.2004 and the letter dated 31.01.2005 were procured by the

project proponent dishonestly.

68. For the aforesaid reasons, we hold that the extension of the EC

dated 20.03.1997 vide letter dated 31.01.2005 of the Director,

MoEF&CC superseding the order of cancellation dated 05.10.2004 is

illegal and invalid. Resultantly all actions taken in pursuance of

such extensions stand also rendered invalid and the question of bar

of limitation redundant and superfluous.

69. After having dealt with the questions arising in the O.As as above,

we may next take up Appeal No. 176/2018.

II. Appeal No. 176/2018

70. It is pertinent to note that during the pendency of W.P. No.

21439/2005 (i.e., present O.A. No. 578/2005), EC dated 20.03.1997

32
 was amended by the MoEF&CC vide order dated 01.09.2011 by

incorporating two enhancements to the capacity of the thermal

power plant on 25.01.1999 from 1000 MW to 2x507.5 MW and on

09.09.2009 from 2x507.5 MW to 2x600 MW respectively. We may

also note that when such enhancements were being allowed, the

O.As were still pending hearing firstly before the High Court and

then before the Tribunal after its transfer.

71. Challenging the aforesaid EC, the Applicant, Janajagruthi Samithi

filed Appeal No. 34/2011 before the National Green Tribunal (NGT),

Principal Bench at New Delhi which was disposed off holding that

the impugned order dated 01.09.2011 was only an order amending

the EC dated 20.03.1997 and, as the amendment would merge with

the said EC which was a subject matter of dispute before the

Karnataka High Court in W.P. No. 21439/2005 (i.e., present O.A.

No. 578/2005), it would be appropriate to dispose off the Appeal

giving liberty to the Appellant to work out his remedies in

accordance with law by approaching the Karnataka High Court.

72. Following the aforesaid order, W.P. No. 22933/2012 was filed by the

Appellant on 04.07.2012 which later got transferred to the NGT, SZ

at Chennai vide order dated 14.08.2012 of the Karanataka High

Court, as a fallout of the directions issued by the Hon’ble Supreme

Court in its order dated 09.8.2012 in Bhopal Gas Peedith Mahila

Udyog Sangathan & Ors. Vs. Union of India & Ors (supra).3

73. The W.P. No. 22933/2012 thus, got registered as Appeal No.

51/2012 which is now Appeal No. 176/2018. In the Appeal, the

Appellant has questioned the validity of the amended Environmental

Clearance dated 09.09.2009 and the “Comprehensive Environment

Clearance” dated 01.09.2011 granted in favour of M/s. Udupi Power

Corporation Ltd. (arrayed as Respondent No.5 in this Appeal).

3
(2012) 8 Supreme Court Cases 326
33
74. The facts stated in brief are that the initial Environmental Clearance

dated 20.03.1997 which was for 1000 MW capacity was enhanced to

2x507.5 MW vide MoEF&CC letter dated 25.01.1999 (which appears

to have been wrongly mentioned as ‘25.01.1999’ in the letter of the

MoEF&CC). This was further enhanced to 2x600 MW vide letter

dated 09.09.2009. This enhanced capacity had been allowed

without following the procedure prescribed in EIA Notification, 2006.

It is contended that the enhancement had been granted despite

there being repeated violations of the Environment Conditions by the

project proponent revealed by various inspection reports and the

notices issued thereafter by the KSPCB. The Appellant asserts that

there is no provision for “Comprehensive Environment Clearance”

under the law. Several objections raised by the Applicant with

regard to various infractions including seepage of sea water and salt

rift, permitting use of coal with higher ash content, adverse impact

on agriculture crops, house and other structures regarding which

the KSPCB had also raised, were ignored by the MoEF&CC before

grant of the impugned EC. The Appellant contends that the

amendment to the EC enhancing the capacity with additional terms

and conditions vide the “Comprehensive Environment Clearance”

granted on 01.09.2011 incorporating several new conditions with no

reference to the original or amended clearance, transforms the

nature of the project and would tantamount to granting fresh

clearance and is not a mere amendment.

75. The MoEF&CC in its statement of objections has stated that the

letter dated 01.09.2011 is an amendment to original EC dated

20.03.1997 by which only additional stringent conditions have been

stipulated. According to the Ministry some amendments have been

made with respect to ash content of coal to be used and mode of

transportation purely on merits of the case. In support of this,

34
 minutes the 12th, 15th, 17th, 20th and 22nd meetings of the EAC

(Thermal) have been referred to. That total transparency had been

maintained by uploading the proceedings in the Ministry’s website.

The concerns expressed by Mr. Balakrishna Shetty for the Samithi

had also been taken due note of. Further, point-wise reply to the

allegations made by the Samithi had also been submitted by project

proponent.

76. Though not stated in the response to the Appeal but taken in the

statement of objections filed in 21439/2005 (GM-POL-PIL), i.e., O.A.

No. 578/2018, it has been stated by the MoEF&CC that proposal for

1000 MW Coal Based Thermal Power project was submitted by the

project proponent sometime in June 1996 along with required

documents, namely, (a) Rapid Environmental Impact Assessment

and Environment Management Plan, (b) application form as

Schedule II of the Environment Impact Assessment Notification of

January 1994 (as amended on 04.05.1994), (c) the questionnaire for

power projects and (d) Provisional Site Clearance for the project

issued by the Karnataka State Pollution Control Board on

19.03.1996. Further, that the project proponent had represented

that it would use imported coal with maximum 17% ash content and

an average of 0.2% to 0.8% sulphur content as main fuel and metal

Electro-static Precipitator with 99.8% efficiency to ensure that the

particulate emission did not exceed the prescribed limit of 150

MG/Nm3.

These, according to the Ministry, were duly considered by the

EAC in its meetings before recommending for Environmental

Clearance (EC).

77. The Respondent No. 5 apart from taking the same stand as the

MoEF&CC, has contended that in the garb of challenging the EC

dated 01.09.2011 (“Comprehensive Environment Clearance” or

35
 amendment to the EC dated 20.03.1997), attempt has been made to

indirectly challenge the EC dated 20.03.1997.

78. In our view, the contention does not appear to be correct as

admittedly by the “Comprehensive Environment Clearance”, the EC

granted on 20.03.1997 and the amendments thereto by permitting

two expansions on 25.01.1999 and 09.09.2009, were being

amalgamated which is also the stand of the respondents. Letter

dated 01.09.2011 also shows that it is not a mere amalgamation as

it also proposes further amendments to condition Nos. (vi) and (ix)

under para 2 to the EC dated 20.03.1997 in addition to the earlier

amendments permitting enhancements of capacity to 2x507.50 MW

and 2x600 MW vide letters dated 25.01.1999 and 09.09.1999

respectively with regard to which we have alluded earlier. Thus,

while examining the legality of the “Comprehensive Environment

Clearance” or “Amendment to Environmental Clearance”, it would be

necessary to examine the entire order of amendment which would

bring within its sweep consideration of the other Environmental

Clearances and amendments.

79. In O.A. Nos. 578/2018, 579/2018 and 580/2018, the Appellant has

sought to challenge the grant of EC on several grounds including the

location of the power plant on varying grounds. The stand of the

MoEF&CC as well as the project proponent is that challenge to the

EC dated 20.03.1997 was barred by limitation, delay, laches and

constructive res judicata. As per the MoEF&CC, the Applicant had

earlier challenged the setting up of 2420 MW thermal power project

and ash pond by the National Thermal Power Corporation at

Nandikur, Yellur, Nitte, Kanthavara, Inna, Palimaru and other

villages by filing W.P. Nos. 1112/1991 and 24197/1990 by the

President of the Applicant’s society which came to be dismissed by

the High Court on 06.08.1991.

36
80. Later, the project was bifurcated into two halves, one of the halves

was granted in favour of M/s. Mangalore Power Company (a

subsidiary of Cogentrix of USA) and the other half, in favour of the

5th Respondent. W.P. No. 28651/1996 was again filed challenging

the 1000 MW power plant allotted in favour of the Mangalore Power

Company raising therein the very same issues as in the present

application. It has been contended that the High Court after holding

that the objections raised in the Writ Petition were not sufficient to

quash the Clearances, had directed the Ministry to take into

consideration the reports of DANIDA, NEERI and the views

expressed by Mr. Sagaradhara within three months. The action as

directed had been taken and adequate steps to ensure

environmental protection for minimizing environmental impact for

which stringent conditions had been imposed. Affidavit of

compliance was duly filed before the High Court. For these reasons,

according to the Respondents, the present application is hit by the

principle of constructive res judicata.

81. We are, however, not impressed by this submission. In so far as

challenge to the EC dated 20.03.1997 is concerned, we have already

held that those are not barred by limitation considering the facts

and circumstances alluded to already. As regards the invocation of

the doctrine of constructive res judicata, we find that the Writ

Petitions referred to in support of this submission pre-dates the

impugned EC dated 20.03.1997 as being W.P. Nos. 1112/1991,

24197/1990 and 28651/1996. The facts of those writ petitions

have also not been adumbrated thus depriving us of the benefit to

scrutinize those. Moreover, admittedly the High Court had directed

further examination of the project taking into consideration expert

opinion of DANIDA, NEERI and one Mr. Sagaradhara from which it

can be inferred even the High Court was not satisfied with the steps

37
 taken by the Respondents. The numerous litigations pursued by the

Petitioners/Applicants before the High Court and other authorities

some of which have culminated in the present cases is clearly

reflective of the fact that they were never idle in raising the concerns

arising out of the project. Again in environmental matters as in the

present cases where the incidence of infraction of the laws would be

on a large body of people, the ecology and the bio-diversity, it will be

too pedantic an approach to apply the principle. We accordingly

reject such contention.

82. As already observed earlier, Appeal No. 176/2018 has not been filed

to assail the EC dated 20.03.1997 only but also the amendments

made thereto which is being sought to be ratified by the

“Comprehensive Environment Clearance” dated 01.09.2011.

Therefore, the subsequent amendments purportedly being

amalgamated in the “Comprehensive Environment Clearance” dated

01.09.2011 which also has been termed as “amendment of EC”

would not fall within such bar. The amendment of the EC vide letter

dated 01.09.2011 gives rise to a fresh cause of action.

83. A careful examination of the impugned letter dated 01.09.2011

permitting amendment of Environmental Clearance reveals that the

EC accorded for 2x500 MW power project on 20.03.1997 had been

permitted to be amended thrice. The first of such amendment was

allowed on 25.01.1999 by which capacity of the project was

permitted to be enhanced from 1000 MW to 1015 MW, the second

on 09.09.2009 from 2x507.5 MW to 2x600 MW and, the third was

allowed on 01.09.2009 whereby amendments have been permitted to

some of the Conditions of EC dated 20.03.1997 while granting the

“Comprehensive Environment Clearance”.

84. We have already noted that several Writ Petitions were filed against

establishment of the project prior to the grant of EC dated

38
 20.03.1997. During the pendency of those cases EIA Notification,

1994 came to be issued by the MoEF&CC thereby bringing the

project within the ambit of the said Notification. Except for raising

objections on technical grounds of locus standi, bar of limitation,

delay in laches, as well as stating that all procedures had been

followed and necessary safeguards provided, none of the

respondents including the MoEF&CC have even whispered on this

aspect. As per Notification under clause (2), application in the

proforma specified in Schedule to the Notification, accompanied by a

project report including EIA report/EMP prepared in accordance

with the guidelines issued by the Central Government from time to

time, was required to be submitted. Schedule 1 to the EIA

Notification, 1994 which provides for the list of projects requiring EC

from the Central Government mentions thermal power plants at

serial number 19. In the Explanatory Note regarding the Impact

Assessment Notification, necessity of a comprehensive EIA report

has been mentioned but considering the fact that at least one year

would be required for its preparation, project proponents had been

permitted to furnish Rapid EIA report to the Impact Assessment

Agency (IAA) based on one season data (other than monsoon), for

examination of the project. However, Comprehensive EIA report

could be submitted later, if so asked by the IAA. The IAA had the

discretion to dispense with the requirement of the EIA in cases of

projects which were unlikely to cause significant impacts on the

environment. This, however, could be permitted only subject to the

project proponent furnishing full justification for such exemption

and, if such exemption was granted, the project proponents would

be asked to furnish such additional information as may be required.

We may refer to clause 5(vii) of the Explanatory Note in this regard.

85. Perusal of the entire records placed before us in respect of the EC

dated 20.03.1997, do not reveal that any of the procedures

39
 prescribed under the Notification dated 27.01.1994 had at all been

followed. It is an admitted case, as would be revealed from the

statement of objections of the MoEF&CC, that the Respondent

project proponent had submitted the proposal of 1000 MW Coal

Based Thermal Power project sometimes in June, 1996. Although

documents like Rapid Environmental Assessment and

Environmental Management Plan had been submitted along with the

application form provided under Schedule II to the EIA Notification,

1994 as well as a questionnaire and provisional site clearance

issued by the State Pollution Control Board on 19.03.1996, the

requisite comprehensive EIA report was apparently not submitted

afterwards and, if it had been dispensed with, it has nowhere been

stated so and further, that such exemption had been granted on the

basis of full justification given by the project proponent and also,

that additional information had been sought for from them. It has

no doubt been stated on behalf of the respondents that the project

was a part of the larger project of 2420 MW in respect of which

certain studies had already been undertaken and, therefore, further

studies were not felt necessary but, in our considered opinion, when

the regulations had come in place, it was incumbent upon the

MoEF&CC and the project proponent to have complied with those

regulations considering the alteration in the capacity of the project

to 1000 MW. It has to be eminently borne in mind that the EIA

Notifications had been issued keeping in view the Precautionary

Principle and the principle of Sustainable Development and was not

meant to be a mere formality. Thus, the mandatory procedures as

laid down in the statutory Notification having not been complied

with even in respect of the initial EC dated 20.03.1997, setting up of

the project cannot be considered as lawful.

86. Even the first expansion from 1000 MW to 1015 MW accorded vide

letter dated 25.01.1999 clearly appears to be in violation of Clause 2

40
 (I) (a) of the EIA Notification, 1994 as would appear from its

reproduction below:

“2. Requirements and procedure for seeking environmental

clearance of projects:

I.(a) Any person who desires to undertake any new project or the
expansion or modernisation of any existing industry or
project listed in Schedule I shall submit an application to
the Secretary, Ministry of Environment and Forests, New
Delhi.

The application shall be made in the proforma specified in

Schedule II of this notification and shall be accompanied
by a project report which shall, inter alia, include an
Environmental Impact Assessment Report/ Environment
Management Plan prepared in accordance with the
guidelines issued by the Central Government in the
Ministry of Environment and Forests from time to time.”

87. In the letter dated 25.01.1999, we only find the following remarks

while allowing the expansion:

“The matter has been looked into and it has been noted that the
increase in the capacity is due to the improvement in the plan
efficiency and up rating of turbines. The coal consumption
would also be reduced to 99.3% of the coal consumption
considered in the EIA report/clearance keeping in view that the
pollution levels would be within permissible limit even after
increase in the capacity, Ministry has not objection to the
installation of 1015 MW capacity station. However, necessary
amendments in this regard should also be obtained from the
Karnataka State Pollution Control Board.”

88. The letter is bereft of any detail as to whether the requirement of

Clause 2 (I) (a) of the EIA Notification, 1994 reproduced above had

been satisfied. We have also perused the entire records and we do

not find any material to support that the enhancement of the project

by 15 MW though seemingly a minor enhancement, had been

subjected to the said requirements.

89. Further the ‘Explanatory note regarding the Impact Assessment

Notification dated 27.01.1994’ prescribing the procedure for

‘expansion and modernization of existing projects’ reads as under:

“A project proponent is required to seek environmental clearance

for a proposed expansion/modernisation activity if the resultant
pollution load is to exceed the existing levels. The words
"pollution Load" will in this context cover emissions, liquid
effluents and solid or semi-solid wastes generated. A project
proponent may approach the concerned State Pollution Control
Board (SPCB) for certifying whether the proposed
modernization/expansion activity as listed in Schedule-I to the
notification is likely to exceed the existing pollution load or not. If
it is certified that no increase is likely to occur in the existing
pollution load due to the proposed expansion or modernization,
the project proponent will not be required to seek environmental
clearance, but a copy of such certificate issued by the SPCB will
have to be submitted to the Impact Assessment Agency (IAA) for
41
 information. The IAA will however, reserve the right to review
such cases in the public interest if material facts justifying the
need for such review come to light.”

90. From the discussions, we find that both the expansions permitted

earlier do not appear to have satisfied the aforesaid requirements.

91. We may take note of the fact that the EIA Notification, 1994 was

replaced by the EIA Notification dated 14.09.2006. Thus, the first

amendment to EC dated 25.01.1999 and the second dated

09.09.2009 which is stated to have been permitted after due

diligence, would fall under the EIA Notification, 1994. However, the

third permitted on 09.09.2009 permitting expansion of the project to

2x600 MW from 2x507.5 MW would squarely fall within the

provisions of the EIA Notification, 2006. The enhancement which is

by 185 MW can by no means be considered as a minor

enhancement. Under clause 2 of the EIA Notification, 2006, it has

been clearly laid down as under:

“2. Requirements of prior Environmental Clearance (EC):-

The following projects or activities shall require prior
environmental clearance from the concerned regulatory
authority, which shall hereinafter referred to be as the Central
Government in the Ministry of Environment and Forests for
matters falling under Category ‘A’ in the Schedule and at State
level the State Environment Impact Assessment Authority
(SEIAA) for matters falling under Category ‘B’ in the said
Schedule, before any construction work, or preparation of land
by the project management except for securing the land, is
started on the project or activity:

(i) All new projects or activities listed in the Schedule to this

notification;

(ii) Expansion and modernization of existing projects or

activities listed in the Schedule to this notification with
addition of capacity beyond the limits specified for the
concerned sector, that is, projects or activities which cross
the threshold limits given in the Schedule, after expansion
or modernization;

(iii) Any change in product - mix in an existing manufacturing

unit included in Schedule beyond the specified range.”

92. Thus, the expansion allowed by 185 MW from the existing capacity

of 1015 MW would fall within the mischief of Clause 2(ii), i.e.,

expansion of existing projects and, since the thermal power plant in

question falls in Category ‘A’ being a Coal Based Thermal Power

Plant of more than 500 MW, it would require prior EC from the

42
 concerned regulatory authority, i.e., MoEF&CC. We may refer to

Clause 1(d) of the Schedule to the EIA Notification, 2006 which is

reproduced below for convenience:

“ Project or Category with threshold Conditions

Activity limit if any
A B
1 Mining, extraction of natural resources
and power generation (for a specified
production capacity)
(2)
( (3) (4) (5)
1
)
1(a) to 1 (c) ……...………xx……...………x……...………xx
1 Therm ≥ 500 MW ≤ 500 MW General
(d) al (coal/lignite/ (coal/ Condition
Power naptha & gas lignite / shall apply.
Plants based); naptha &
≥ 50 MW (Pet gas based);
coke diesel < 50 MW
and all other ≥ 5 MW
fuels-) (Pet coke,
diesel and
all other
fuels) ”

Again Clause 7 (ii) of the EIA Notification, 2006 which prescribes

the procedure for prior Environmental Clearance for expansion or

modernization or change in product mix in existing projects, is

reproduced below:

“7(ii). Prior Environmental Clearance (EC) process for

Expansion or Modernization or Change of product mix in
existing projects: All applications seeking prior environmental
clearance for expansion with increase in the production capacity
beyond the capacity for which prior environmental clearance has
been granted under this notification or with increase in either
lease area or production capacity in the case of mining projects
or for the modernization of an existing unit with increase in the
total production capacity beyond the threshold limit prescribed in
the Schedule to this notification through change in process and
or technology or involving a change in the product –mix shall be
made in Form I and they shall be considered by the concerned
Expert Appraisal Committee or State Level Expert Appraisal
Committee within sixty days, who will decide on the due
diligence necessary including preparation of EIA and public
consultations and the application shall be appraised accordingly
for grant of environmental clearance.”
[Underlining supplied]

93. From the above, it is evident that for the proposed expansion, the

project proponent is required to submit proposal in Form I which

shall be considered by the concerned Expert Appraisal Committee

(EAC) or State Level Expert Appraisal Committee within 60 days,

who will decide on the due diligence necessary that would include

43
 preparation of EIA and public consultations and thereafter appraise

the application for grant of Environmental Clearance.

94. Letter dated 09.01.2009 granting enhancement of project capacity

only mentions that setting up of 1015 MW had been accorded by the

Ministry vide letter dated 20.03.1997 but, we find no material to

demonstrate that all the procedure including preparation of EIA and

holding public hearings have been followed for grant of the

enhancement from 1015 MW to 1200 MW. The only factors taken

into consideration are contained the letter dated 09.09.2009. Being

relevant, we may reproduce the relevant portion of the said letter

which reads as follows:

“ Dated: 9th September, 2009

To
M/s. Udupi Power Corporation Limited
Prestige Opal, Unit 202, 2nd Floor
#146, Infantry Road
Bangalore-560 001

Sub: Enhancement of project capacity from 2x507.5 MW to

2x600 MW coal based thermal power plant at Padubidri New
Mangalore Karnataka by M/s. Udupi Power Corporation
Limited-Environmental clearance regarding.

Sir,

Reference is invited to your letter No. UPCL/B04/2009/1193

dated 16.1.2009 requesting for enhancement of project capacity from
2x507.50 MW to 2x600 MW in respect of the above mentioned project.
Subsequent information furnished vide letter No. UPCL/ MOEF/2009
dated 11.2.2009, letter no. UPCL/CRZ/2009 dated 19.2.2009 and
letter no. UPCL/B04/2009/234 dated 23.2.2009 have also been
considered.

2. It is noted that the environmental clearance for setting up of

1015 mw was accorded vide this Ministry’s letter of even number
dated 20th March, 1997. M/s. Udupi Power Corporation Limited has
now proposed to examine the project capacity from 2x507.50 MW to
2x600 MW. It is further noted that:

(i) No additional land is required due to change in capacity.

(ii) Coal requirement will increase from 415 MT/hr to 488 MT/Hr.
(iii) Ash content in imported coal will decrease from 13.91% to
4.75% and sulphur content will increase from 0.53% to 0.80%.
(iv) Predicted GLC for So2 will decrease from 10.10 ug/m3 to
8.14 ug/m3 due to increase in stack dia and increase in
effective stack height.
(v) Make up water requirement will increase from 8000 m3/hr to
10000 m3/hr.”

3………..………………..xx….……………...………x……….………...………xx

95. The MoEF&CC had conveyed it’s no objection to such enhancement

subject to strict implementation of the conditions contained in the

EC dated 20.03.1997 with 12 additional conditions stipulated in the

44
 said letter. This obviously is not in consonance with the procedure

for grant of EC prescribed for expansion under the EIA Notification,

2006.

96. A bare reading of the letter dated 01.09.2011 would show that the

amendment of Environmental Clearance granted vide letter dated

01.09.2011 is not an amendment of the EC dated 20.03.1997

simpliciter but rather ratification of the earlier two ECs with

additional change in the conditions, more specifically the condition

nos. (vi) and (ix) under para 2 of the EC dated 20.03.1997 and the

letter dated 09.09.2009, which would be evident from paras 2 and 3.

It has no doubt been stated that the proposal regarding amendment

was deliberated in the 12th, 15th, 17th, 20th, 22nd and 26th Meetings

of the Expert Appraisal Committee (Thermal Power) held during

December, 2010, January, 2011, February, 2011, March, 2011,

April, 2011 and June 2011 respectively. However, we do not find

mention of any EIA studies that had been undertaken as required

either under Clause 1 of the Explanatory Note of the EIA Notification

1994 in respect of expansion and modernization of existing projects

or under Clause 7(ii) of the EIA Notification, 2006. In our view, this

is a serious breach having regard to the object for which the

aforesaid procedures have been laid down.

97. To elaborate further, it is the admitted case of the MoEF&CC that

the amendment was permitted after considering the proposals

submitted by the project proponent purely on the merits of the case

after deliberating all the concerns expressed by the Samithi in the

meetings of the EAC. The Samithi appears to have raised serious

questions with regard to the affect of the proposed amendments.

The additional requirement of coal to the augmented plant would

also have ramification in relation to ash content, sulphur, etc. of the

coal used in the plant. There were also other concerns with regard

45
 to the transportation of coal and dry fly ash to the ash disposal area

as well as use of water from the sea instead of Mulki river. The

minutes of the EAC indicate that the Samithi had been raising

various other issues including impact on the public health and the

school children in the area. The 26th meeting of the EAC held on

6th-7th June, 2011 after arriving at the conclusion that the

amendments sought for is not in contravention to any statement

made by the Ministry in the High Court nor any judgement passed

by the High Court and that the request made by the project

proponent was valid, confirmed grant of EC.

98. The facts and circumstances would no doubt show that the proposal

of change in some of the clauses of the EC granted earlier had been

deliberated by the EAC but, this cannot be a substitute to the

procedure prescribed in the EIA Notifications of both 1994 and

2006. Admittedly no EIA studies had been undertaken and no

public hearing had been conducted which the rules make it

mandatory to abide by.

99. Apart from the above, no public hearings had apparently been

conducted as mandated under the regulation of 1994. It has been

stated in para 9 of the statement of objections filed by Respondent

No. 5 in Appeal No. 86/2018 that Notification dated 27.01.1994

under paragraph III (c) did not make public hearing mandatory.

This statement is contrary to very said provision which reads as

under:-

“(c) The Impact Assessment Agency shall prepare a set of

recommendations based on technical assessment of documents
and data, furnished by the project authorities, supplemented by
data collected during visits to sites or factories, if undertaken,
and interaction with affected population and environmental
groups, if necessary. Summary of the reports, the
recommendation and the conditions, subject to which
environmental clearance is given, shall be made available
subject to the public interest to the concerned parties or
environmental groups on request. Comments of the public may
be solicited, if so decided by Impact Assessment Agency, within
thirty days of receipt of proposal, in public hearings arranged for
the purpose after giving thirty days notice of such hearings in at
least two newspapers. Public shall be provided access, subject
to the public interest, to the summary of the reports/
46
 Environmental Management Plans at the Headquarters of the
Impact Assessment Agency.

The assessment shall be completed within a period of

ninety days from receipt of the requisite documents and data
from the project authorities and completion of public hearing,
where required, and decision conveyed within thirty' days
thereafter.”
[Underlining provided]

From the above, it is quite evident that public hearings was

necessary to be arranged after giving 30 days notice for such

hearings in at least two newspapers. Of course, whether to solicit

comments of the public or not is to be decided by the IAA, but it is

not the case of any of the Respondents that the IAA had decided not

to do so. It is rather their case that no public hearing was necessary

at all. This is a serious lacuna in the proceedings rendering the

earlier ECs and the impugned EC dated 01.09.2011 as being illegal.

100. There is another aspect of the matter which renders the impugned

EC dated 01.09.2011 questionable as admittedly no public hearing

had been conducted. To defend this lacuna, it has been contended

that the project being located in a notified industrial area, it was

exempted from public hearing. Reference in this regard has been

made to 7(i), III(i)(b) of EIA Notification, 2006.4 The submission

appears to be misconceived in as much as clause 7 (i) sets forth the

different stages for a new project to undergo in the process for

obtaining Environmental Clearance. Clause 7 (ii)5 on the other hand

deals with the process for expansion as already dealt with earlier.

Item No. 7 (c) which sets out the category of industries for which

public consultation has been exempted under Stage III, deals with

expansion of roads and highways which do not involve any further

acquisition of land. ‘Thermal Power Plants’ is provided under Clause

1(d) of EIA Notification, 2006 and, as already noted, falls under

‘Category A’. Indisputably the project of the Respondent No. 5 is of

category with more than 500 MW capacity for which ‘General

4
Written Submission dated 06.02.2019 filed by Respondent No. 5
5
Para 92 of this order.
47
 Conditions’ apply as per Column 5 contained in the Schedule to the

EIA Notification, 2006.

101. We thus find it difficult to accept such contention as the very

foundation based upon the public hearing had been dispensed with

appears to be grossly erroneous. Thermal power plants would

involve serious environmental impacts both on air as well as on

water apart from other environmental aspects. Besides the question

of location, the Applicant had been pointing out time and again the

impacts based on credible information.

102. These facts and circumstances, therefore, lead us to arrive at the

irresistible conclusion that the EC dated 20.03.1997, the expansions

granted to the existing power plant firstly from 1000 MW to 1015

MW and later from 1015 MW to 1200 MW vide impugned letters

dated 25.01.1999 and 09.09.2009 respectively, as well as the

Comprehensive Environment Clearance/amended Environment

Clearance dated 01.09.2011, are violative of both the EIA

Notifications of 1994 and 2006 and, therefore, invalid. Any decision

contrary to this held earlier by the Tribunal or any other authority

stands superseded by this finding and shall be held to be no longer

valid.

103. Having dealt with various facts and circumstances set out in the

O.A. Nos. 578/2018, 579/2018, 580/2018 which primarily assails

the Environmental Clearance dated 20.03.1997 and, Appeal No.

176/2018 that questions the “Comprehensive Environment

Clearance” granted on 01.09.2011, we may now proceed to deal with

Appeal No. 86/2017 (SZ).

III. Appeal No. 86/2018

104. The Appeal is directed against the Environmental Clearance dated

01.08.2017 issued by MoEF&CC to the Respondent No. 5, M/s.

48
 Udupi Power Corporation Ltd., for expansion of the existing power

project by addition of 2x800 MW (Phase-II) imported Coal Based

Super Critical Thermal Power Project at Padubidri Industrial Area

near Yellur, existing power project being the one with the capacity of

2x600 MW (Phase-I) with which we have dealt with in detail earlier.

It is stated that the boiler of the power plant is designed for blended

coal in the ratio of 70% imported coal and 30% domestic coal. In

addition to the 650 acres occupied by the existing phase-I of the

project, 730 acres of additional land have been proposed for the

expansion of which 180 acres will be for the main plant, 272 acres

for railway yard, etc., and 270 acres near the existing ash pond in

village Santhur. The KCZMA has recommended CRZ Clearance for

laying sea water intake and marine outfall pipelines vide letter dated

01.04.2017 which is yet to be cleared by the MoEF&CC. Additional

transmission lines would require for evacuation of power that would

be generated, the impact of which has not been assessed although it

would involve use of forest land and would have an impact on the

ecological sensitive zones and protected areas in the Western Ghats.

Impact on wildlife has not been considered in the process of the

Clearance and no impact assessment studies have been conducted

or insisted upon although it cuts through national park.

Cumulative Impact studies have not been undertaken in the EIA

report. No public hearing was conducted.

105. It is further stated that the Environmental Clearance for the

establishment of Phase I of the Udupi Thermal Power Plant was

issued on 20.03.1997 for a 2x500 MW coal based TPP at Padubidri.

The Phase-I Environmental Clearance was issued on the basis of a

Rapid EIA, Vicinity Plan and Pre-Feasibility Report for the location in

Nandikur. No public hearing was conducted. Subsequently, the

MoEF&CC issued the following:-

49
 i. Amendment on 07.08.1997 allowing single chimney with

two flues.

ii. Amendment on 25.01.1999 allowing capacity

enhancement from 2x500 MW to 2x507.5 MW, i.e., 1015

MW.

iii. Amendment on 16.04.2002 extending the validity of the

EC dated 20.03.1997 by two years.

iv. Order dated 05.10.2004 cancelling the Environmental

Clearance dated 20.03.1997 for failure to commence

construction within the validity period.

v. Letter dated 31.01.2005 reinstating the EC.

vi. Amendment on 09.01.2009 January 2009 transferring

the EC to the new owners and shifting the location of the

TPP to the present site.

vii. EC on 09.09.2009 to the Udupi TPP for an increased

capacity of 2x600 MW.

viii. “Final Comprehensive Environment Clearance” on

01.09.2011 against which it is asserted that the

“Comprehensive Environment Clearance” diluted a

number of the earlier safeguards under the garb of

merging the earlier clearances.

ix. Amendment on 19.06.2012 with further concessions on

ash disposal.

106. It is contended that when the present appeal was filed which is

against the Environmental Clearance dated 01.08.2017 for Phase-II

of the project, O.A. Nos. 578/2018, 579/2018, 580/2018, and

Appeal Nos. 176/2018 assailing the Environmental Clearance dated

20.03.1997 for Phase-I of the project and its subsequent

amendments, were still pending before the Tribunal.

50
107. Although the Terms of References (ToR) for expansion were issued

on 11.08.2010, the project proponent could not proceed further.

Memorandum of Understanding (MoU) for expansion of the existing

power plant signed between the State Government of Karnataka and

the Respondent No. 5 resulted in the proposal for expansion of the

existing unit of 2x600 MW by addition of 1600 MW (2x800 MW

units) on the land adjacent to the existing power plant. ToR was

issued by the MoEF&CC vide letter dated 13.08.2015 directing

public hearing to be conducted. The public hearing though was held

on 10.11.2016, the local villagers were not allowed to participate due

to strong arm tactics adopted by the Respondent No. 5 apart from

the fact that an order under Section 144 of Criminal Procedure Code

(Cr.P.C.) had been imposed in the area by the District Magistrate.

The EIA report was submitted by the project proponent on

19.12.2016 with serious flaws.

108. The impugned Environmental Clearance has been questioned on the

following grounds:

i. The EAC while recommending the project for grant of EC

overlooked the fact that there were 34 cases concerning

the thermal power plant amongst which some

proceedings before the Tribunal challenging the Phase-I

Environmental Clearance were sub-judice. Therefore, the

recommendation of the EAC suffered from the vice of non-

application of mind and, was also, in disregard to the

authority of various Courts as well as the Tribunal.

ii. Granting of the impugned Environmental Clearance with

a specific condition that it was subject to the outcome of

pending Court cases pertaining to the environment and

ecology, amounted to permitting the project proponent to

create a fait accompli situation. This ought not to have

been allowed.

51
 iii. EIA methodology was flawed as it has not considered the

impacts of the existing plant. Moreover, the impact of a

brownfield power plant, data collection ought to be done

for a full year and not just one season, as done in the EIA

in the present case. Only a carefully designed full year

data collection for all relevant parameters would reveal

the full extent of the impact. This was ignored while

undertaking the EIA for Yellur when the area was a

brownfield site and not a greenfield site.

iv. US EPA Gaussain air pollution model has been used for

the EIA study for predicting ambient air quality. This

model has not been validated in India and is not reliable.

109. Repeating the objections raised in respect of Phase-I of the power

plant, it is reiterated that the site selection for Phase-I as given in

the EIA report, the site of the project permitted in the Environmental

Clearance dated 20.03.1997 and the location of the actual 2x600

MW thermal power plant are different in as much as the EIA report

mentions the site of Phase-I at Nandikur, the Environmental

Clearance dated 20.03.1997 mentions it as Padubidri and the

Phase-I is actually located at village Yellur. It is pointed out that the

site at Yellur was rejected by NEERI in its report submitted in 1996

as being ecologically sensitive. There are other aspects with regard

to the cancellation of the Environmental Clearance dated

20.03.1997 vide order dated 05.10.2004, its illegal reinstatement by

a personal communication dated 31.01.2005 and the failure in

carrying out the mandated carrying capacity studies with which we

may not deal with again as being repetitive. The Applicant has

raised these questions in relation to its objection that the impugned

Environmental Clearance for Phase-II (expansion) was granted

without consideration of the serious inadequacies in respect of

earlier impugned Environmental Clearance dated 20.03.1997.

52
110. The next contention is with regard to the deleteriousness of a coal

based power plant such as the Respondent No. 5 associated with the

emission of particulate matters from such plants, and the health

hazards caused by such emissions to the residents including the

children. It is contended that the impact of the plant on human

health, vegetation and the environment has not been considered at

all and no studies had been carried out in this regard.

111. Pointing our various infirmities in the EIA undertaken by the NEERI

for Phase-II of the project, it was submitted that the EAC, despite

such infirmities, accepted the EIA report without application of

mind. It is reiterated that the Respondent No. 5 plant had failed to

comply with the Phase-Ï Environmental Clearance which MoEF&CC

did not take note of.

112. It is contended that the EIA report does not disclose a vital

component, i.e., source of coal, and no provisions have been made

for analysis of its contents. Apart from the fact that the linkage for

the coal supply has not been furnished. This lacuna has been

allowed to prevail despite letter dated 13.08.2015 of the MoEF&CC

granting the ToRs which clearly directs that “the Environmental

Clearance shall be applied only after fuel and water linkages are

firmed up.”

113. It is stated that the source of coal has not been finalized as yet

which, according to the Appellant, would be evident from the

impugned Environmental Clearance where it has been clearly noted

that “till the domestic allocation from MoC is received, 100%

imported coal from Australia and Indonesia will be used.”

114. Besides such serious infractions, even the requisite analysis of

radioactivity and heavy metals, contents of the coal which is to be

sourced, has not been carried out. The source of domestic and

53
 imported coal has not been identified and no studies have been

carried out on such a critical aspect as mandated under ToR

condition (xlv), (xlvi) and (xlvii) rendering the final EIA report

inadequate. Further the Wind roses presented in the NEERI’s EIA

report only deal with one season and, therefore, cannot be relied

upon whereas the Wind roses adopted by the Indian Meteorology

Department and DHARA are annual Wind roses and, therefore,

representative of the wind patterns of the sea. It is then contended

that the EIA has not identified transportation route or systems for

domestic coal as well as pollution mitigation measures relating to

the transportation of the coal, both imported and domestic, which is

critical for evaluating the impact of the expansion of the power

plant. It thus violates condition (xlviii) of the ToR which mandates

such study.

115. It is then stated that the EIA of the proposed sea water intake and

outfall and identification of its suitable location does not indicate its

impact on the marine environment. That apart, the EIA has been

prepared by a consultant who is not a consultant accredited by the

NABET and QCI which is in contravention of EIA Notification dated

03.03.2016. The study does not consider the impact of the existing

sea water intake and outfall lines but, has only made a cursory

attempt to identify the impacts of the new pipelines in total

disregard to the several studies which show that an increase in sea

water temperature caused by power plant discharge has multiple

impacts on aquatic ecosystems and aquatic organisms which survive

on specific thermal conditions a disproportionate change of which

can cause stress or even death. This was a non-compliance of the

additional ToR condition (i) which requires that ‘Impact on fisheries

at various socio economic levels shall be assessed.’

54
116. Crucial information about construction of ash pond, ash dykes and

ash lining has not been provided. There is neither Cumulative

Impact Assessment in the EIA report of the various industries,

existing and proposed, in the study area nor carrying capacity of the

Karnataka coastline assessed when it has been admitted in Form-1

that the project will have cumulative impacts due to its proximity to

other existing or planned projects having similar effects.

117. The EAC has failed to take note of the objections raised by the

society and the various infractions indicated earlier while appraising

the EIA report and it had merely proceeded to accept the

explanations offered by the project proponent and recommended the

project for clearance in a hurry.

118. The deficiencies pointed out earlier in respect of the public hearing

has been reiterated asserting further that the EIA report being in the

English language could neither not be understood by the project

affected people nor was it not widely circulated. The EIA is generic,

non-site specific reflecting lack of application of mind on part of the

MoEF&CC.

119. Amongst the Respondents, only Respondent No. 5, the project

proponent, has filed its statement of reply stating as follows:

1. The Respondent had carried out EIA studies in terms of the

approved Terms of Reference (ToR). The entire process

prescribed in the EIA Notification, 2006 for obtaining prior EC

had been complied with.

2. All studies as per the ToR had been carried out. The

Cumulative Impact Assessment was undertaken and major

industries within the study area namely, Suzlon Wind

International, SE Composites (Suzlon Tower International)

and Oil Storage Site of Mangalore Refinery were identified and

disclosed in the EIA report in compliance to condition no.

55
 Xliii. Ambient Air Quality monitoring representing the

baseline studies within 10 kms of the proposed project had

been done and include in the EIA report.

3. Both negative and positive impacts of the project had been

assessed and addressed. Public hearing had been conducted

during which over 1500 people mostly from the villages within

the study area had attended and videography of the

proceedings has also been taken. The public hearing

proceedings show the number of participants freely

interacting and expressing their views. Mr. Balakrishna

Shetty, who had been raising the issues on behalf of the

Samithi also participated and expressed his views. The EIA

report was prepared by CSIR-NEERI which is NABET-QCI

accredited for carrying out such studies.

120. Upon perusal of the entire records, we find that while EIA studies

had been undertaken and appraised by the EAC before grant of the

EC, curiously the serious flaws in the “Comprehensive Environment

Clearance” dated 01.09.2011 adumbrated earlier were completely

overlooked before considering the proposal for expansion of the

existing plant by such a magnitude, i.e., by 2x800 MW, which would

be more than the twice existing capacity of 1200MW. We also find

series of notices issued against the plant and proceedings instituted

by the State PCB for violation of the Consent Conditions under the

Air (Prevention and Control of Pollution) Act, 1981 and the Water

(Prevention and Control of Pollution) Act, 1974 but those also had

been completely overlooked. It is also pertinent to note that

additional 730 acres of land was involved for the expansion of which

more than 400 acres was only for the plant. When the present EC

dated 01.08.2017 was granted, validity of the said Comprehensive

Environment Clearance was still under consideration in Writ Petition

No. 22933/2012 renumbered as Appeal No. 176/2018 after transfer

56
 from the High Court in respect of which we have already dealt with

earlier. Thus granting the present clearance, in our view, amounts

to giving premium to a project which is in violation.

121. Further, in the EIA Report, in spite of its prolixity, we find that one

of the vital components necessary for carrying out the studies is

found to have been completely overlooked. The ToR for the project

which was submitted by project proponent, has not included study

on the impact of the proposed expansion by such gigantic proportion

in relation to the existing 1200 MW project already in operation

albeit in violation of the regulations. This gets compounded by the

fact that carrying capacity had not been carried out by the State

Government despite the fact that the MoEF&CC had expressed its

necessity as would appear from the averments contained in its

statement of objections filed in O.A. No. 578/2018 (W.P. No.

21439/2005). EIA studies carried out on a flawed ToR thus would

be far from being reliable.

122. The next is the credibility of the public hearing that was conducted.

Such hearing is one of the components of Public Consultation

provided in stage (3) of the EIA Notification, 2006. It is meant, inter

alia, for ascertaining concerns of local persons for which procedure

is prescribed in Appendix IV of the Notification. We are not aware as

to whether these procedures have been followed as scrupulously as

required but, it is an admitted position on the part of the project

proponent that only 1500 people from village Yellur and Santhur

village were present. Although no quorum has been fixed in the

notification, the number of people said to have been present at the

hearing cannot be considered as representative of the entire

population. This impression remains indelible and persists even if

we accept the contention that about 60 eminent persons had

attended the hearing including the representative of the Samithi.

57
 Active and wide participation of the general public was necessary for

the hearing to be meaningful. This is all the more necessary when

the EIA report points out several impacts as reflected in paragraph

4.4.6 of the EIA report which assumes significance when we

consider the following requirements in Appendix IV to EIA

Notification, 2006 which is reproduced below for convenience:

“6.3 A representative of the applicant shall initiate the

proceedings with a presentation on the project and the Summary
EIA report.

6.4 Every person present at the venue shall be granted the

opportunity to seek information or clarifications on the project
from the Applicant. The summary of the public hearing
proceedings accurately reflecting all the views and concerns
expressed shall be recorded by the representative of the SPCB or
UTPCC and read over to the audience at the end of the
proceedings explaining the contents in the vernacular language
and the agreed minutes shall be signed by the District
Magistrate or his or her representative on the same day and
forwarded to the SPCB/UTPCC concerned.

6.5 A Statement of the issues raised by the public and the

comments of the Applicant shall also be prepared in the local
language and in English and annexed to the proceedings.

6.6 The proceedings of the public hearing shall be conspicuously

displayed at the office of the Panchyats within whose
jurisdiction the project is located, office of the concerned Zila
Parishad, District Magistrate ,and the SPCB or UTPCC . The
SPCB or UTPCC shall also display the proceedings on its website
for general information. Comments, if any, on the proceedings
which may be sent directly to the concerned regulatory
authorities and the Applicant concerned.”

123. We also cannot lose sight of the fact that, concededly, order of

prohibition under Section 144 Cr.P.C. had been enforced in the area

on the day of the public hearing.

Considering the above facts, we find it difficult to accept that

the EC granted for the project is beyond reproach but find it rather

to be seriously flawed.

124. The question that then requires determination is, should the EC be

quashed and set aside? After careful consideration, we find that

further studies are unavoidable in order to ensure that the EIA is

complete. We, therefore, direct as follows:

(i) Baseline data of the area in relation to the existing project

of 2x600 MW shall be scrupulously collected;

58
 (ii) In addition to the above, the State of Karnataka shall get

a carrying capacity study of the area carried out.

(iii) The baseline data and the carrying capacity study shall

be considered as components for studying the impact in

relation to the proposed expansion;

(iv) Fresh public hearing shall be conducted strictly in

accordance with the procedure laid down in Appendix IV

of EIA Notification, 2006 ensuring wide participation of

the people affected by the project.

125. After completion of the above, report shall be submitted to the

MoEF&CC to be placed before the Expert Appraisal Committee for

appraisal as required under stage IV of the EIA Notification, 2006.

The entire exercise shall be completed within a period of one

year. In the meanwhile, EC dated 01.08.2017 shall remain

suspended.

CONCLUSIONS IN SHORT

OA Nos. 578/2018, 579/2018, 580/2018 and Appeal No.

176/2018.

126. These cases are neither barred by limitation, delay, laches nor hit by

the principle of res judicata.6

127. The allegation of illegal shifting of the project (Phase-I) to Yellur

made by the Applicant does not appear to be incorrect.7

128. The letter dated 31.01.2005 withdrawing the cancellation of EC

dated 20.03.1997 by communication dated 05.10.2004 of the

MoEF&CC is invalid and, therefore, commencement of the project

work after 20.03.2004 is unauthorized and illegal.8

6
Para 61 and 81 of this order
7
Para 61 (ii) of this order
8
Paras 61 (iii), 62, 63, 64, 65, 66, 67 and 68 of this order
59
 129. Notwithstanding the above, even on merits the project is found

mired in illegalities as already recorded and as will appear from the

conclusions set out below.

Appeal No. 176/2018

130. Although the direct challenge in this Appeal is the “Comprehensive

Environment Clearance” dated 01.09.2011, we have found that it is

a ratification of earlier two enhancements granted from 1000 MW to

2x507.5 MW vide MoEF&CC letter dated 25.01.1999 and from

2x507.5 MW to 2x600 MW vide MoEF&CC letter dated 09.09.2009.

It has also been found that the “Comprehensive Environment

Clearance”/amended Environment Clearance is not just an

amalgamation of the earlier ECs as claimed by the Respondents as it

contains amendments to two EC Conditions being No. (vi) and (ix)

under para 2 of the EC dated 20.03.1997. While granting

permission for enhancements of the project from 1000 MW to 1015

MW on 25.01.1999 which fell within the preview of EIA Notification,

1994, no REIA was undertaken nor public hearing conducted as

required under the Explanatory Note to the said Notification read

with para 3(c) thereof. Thus the grant of such expansion is in

violation of EIA Notification, 2006.9

131. Insofar as the enhancement granted to the project from 2x507.5 MW

to 2x600 MW on 09.09.2009 and the impugned Comprehensive

Environment Clearance on 01.09.2011 are concerned, those would

fall under the provisions of the EIA Notification, 2006. But despite

this fact, the procedures required therein have not been followed.10

No public hearing had been conducted in this case, which is

mandatory under said Notification.11

9
Paras 83, 84, 85, 86, 87 and 88 of this order
10
Paras 91, 92, 93, 94, 95, 96, 97 and 98 of this order
11
Paras 99 and 100 of this order
60
 132. For the aforesaid reasons the “Comprehensive Environment

Clearance” dated 01.09.2011 as well as the earlier expansions

granted vide letter dated 25.01.1999 and 09.09.2009 are violative of

the EIA Notification, 1994 and EIA Notification, 2006 and rendering

all actions taken in terms of such permissions illegal.

Appeal No. 86/2017

133. Challenge in this Appeal to the EC dated 01.08.2017 granted by the

MoEF&CC in favour of the Respondent No. 5, M/s. Udupi Power

Corporation Ltd., for expansion of the existing thermal power plant

by addition of 2x800 MW (Phase-II), sustains in view of the following

findings:12

i. While considering the grant of expansion, the MoEF&CC

had failed to overlook the fact that the project proponent

had been in violation of the Conditions of consents

frequently as revealed by the notices issued by the State

PCB against the plant and the proceedings instituted

against it under the Air (Prevention and Control of Pollution)

Act, 1981 and the Water (Prevention and Control of

Pollution) Act, 1974.

ii. The EC had been granted even when the validity of the

“Comprehensive Environment Clearance” dated 01.09.2011

was sub-judice.

iii. The Terms of Reference (ToR) submitted by the project

proponent and approved by the MoEF&CC did not include

study on the impact of the proposed expansion of such a

huge magnitude in relation to the existing 1200 MW project.

No carrying capacity had been undertaken although the

need for such study had been conveyed by the MoEF&CC.

iv. Public hearing conducted in respect of the project is found

to be inadequate and is not in the spirit and requirement of

stage (3) of the EIA Notification, 2006.

12
Paras 120 and 121 of this order
61
 SUMMARY AND DIRECTIONS

134. To sum up, we find that the project proponent had been in violation

right from the inception. Genuinely serious issues raised by the

villagers and the Applicants had not been given the due attention it

observed by all concerned including the Government. The fact that

multitudes of disputes and litigations relating to the project had

been instituted bears witness to the fact that all was not well.

Environmental clearance dated 20.03.1997 had been granted

without following the due process statutorily prescribed and

mandatorily required to be followed.

135. Extension of the validity period of the EC had been granted on

16.04.2002 at the request of the project proponent as work could

not be commenced within the 5 years’ period stipulated in the EC.

On 05.10.2004 the EC was cancelled by the Ministry as the project

proponent had still not commenced with the work of the project.

This order of cancellation was recalled vide letter dated 31.01.2005

under questionable circumstances at the request of the project

proponent. This was followed by expansion of the project capacity

twice, i.e., from 1000 MW to 1015 MW on 25.01.1999 and from

2x507.5 MW to 2x600 MW on 09.09.2009 and that too at the

request of the project proponent and on the basis of the information

furnished by project proponent. No public hearings were conducted

as required under EIA Notification, 1994 and 2006 nor other

procedures followed before grant of such expansions.

136. On 01.09.2009, a “Compressive Environment Clearance” was

granted ostensibly to amalgamate all the clearances but with

alteration in respect of at least two of the conditions in the EC dated

20.03.1997. “Comprehensive Environment Clearance” as per the

EIA Notification, 1994, is required to be preceded by a REIA for a

fresh project. Admittedly this is not a case where the “Compressive

62
 Environment Clearance” was being granted for a new project, but is

purportedly an amalgamation of the earlier projects. In any case,

the impugned Comprehensive Environment Clearance having been

issued on 01.09.2011, it is not governed by EIA Notification, 1994

under which only REIA is provided but by the EIA Notification, 2006.

Comprehensive Environment Clearance is alien to the EIA

Notification, 2006. The so called Comprehensive Environment

Clearance was granted based on the information submitted by the

project proponent and clearly appears to be an exercise to ratify the

earlier EC and expansions without following the due procedure.

137. We have already observed that the procedures laid down under the

EIA Notifications are not mere formalities to be followed but have

been prescribed to ensure that the environment is duly protected

while taking up a project keeping in view the Precautionary Principle

and the principle of Sustainable Development. The fact that the

procedures prescribed in the Notification were not at all followed

except few parts of it, leads us to reasonably conclude that there has

been damage caused to the environment for which consequences

have fallen on the people in terms of health, decline in the

agricultural productivity and, therefore, their livelihood, degradation

of natural habitat of birds and animals, etc.

138. A study carried out on “Environmental Profile and People’s

Livelihood aspects in the vicinity of Coal Based Thermal Power Plant

at Yellur Panchayat, Udupi District” by a group of Scientists as CES

Technical Report 126 dated April 2012 published by the Energy &

Wetland Research Group, Centre for Ecological Sciences, Indian

Institute of Science, Bangalore, has made alarming observations in

respect of the project area during field investigations. It has been

observed that mismanagement of the environment was evident from

the contamination of the water (surface and ground), soil and air

63
 apart from the impaired functional aspects of the biotic elements.

This was deduced from the reduced productivity of grains, jasmine

flower and horticultural produce, reproductive ability of livestock,

poultry animals, etc. There was dust on the leaves during the dry

seasons which induced phyto-toxicity leading to poor pollination and

hence reduced productivity. There was reduction in the population

of pollinators. Stunted growth of saplings and enhanced respiratory

diseases, etc. were noticed caused by release of saline mist from the

cooling towers of the plant which is locally dispersed by the wind

even upto 2 kms.

139. The report further observes as follows:

“Analysis of the water samples collected from surface and ground water
bodies within 2 km zone reveal higher inorganic anions, cations and
heavy metals beyond the permissible limits of Bureau of Indian
Standards (BIS) and World Health Organization (WHO). Similarly, the
analysis of water samples of the villages of Yellur (including Kolachur),
Nadsal (including Tenka Yermal) and Santhur by PCB also reveal of
contamination. Release of effluents (oil spills rich in hydrocarbons)
directly to natural drains at north-western side (Yellur) of TPP has been
observed during the field work and also reported by local people in the
vicinity. Also, the releaseof coal mix effluents directly into the streams
has been noticed at north-western (Yellur), south-western (Yellur,
Padebetu, Tenka) and southern (Kolachur) sides.The irresponsible act of
releasing untreated effluents (rich in salinity, heavy metals,
hydrocarbons) is primarily responsible for contamination of water
(ground and surface waters) and land resources. Due to these, higher
accumulations of contaminants in the environment have affected human
and livestock dependent on thewater bodies and agriculture fields. The
severity of the contamination is felt even at coastal region which is over
4 km (as effluent contaminated water passes through the agriculture
fields). The presence of zinc, cadmium, lead, iron, cobalt, nickel, copper,
chromium, manganese in water samples in the core zone (within 2 km)
and also in soil samples of buffer regions of TPP reveal heavy metal
contamination with xenobiotic compounds.

The transport and dry disposal of coal ash (fly ash) has resulted in the
dispersion of ash particulates and fugitive dust in the neighbourhood.
Intermittent release of ash pond water to nearby stream (eventually
joins the Shambhavi river) in Santhur village has contaminated to
ground water resources. Apart from these, leakage of saline water into
agriculture fields has enhanced the salinity affecting paddy yield.
Agricultural crop lands have been abandoned due to low crop yield
subsequent to TPP’s contaminations. The indiscriminate disposal of
synthetic substances used for coating of the GRP pipeline has also
added to the soil contamination.

Socioeconomic survey of residents within 6 km zone reveals the impact

on livelihood of people due to reduced crop productivity, higher
instances of human and livestock health issues, damages to
infrastructure, etc. which further corroborates the environmental
impacts (water, soil and biotic elements) with the contamination of
water, air and soil.”13

140. The summary of findings in the report, records that as many as 47

affects have been observed on plants, vegetation, animals, fish and

13
CES Technical Report 126 dated April 2012, submitted by Energy & Wetland Research Group,
Centre for Ecological Sciences, Indian Institute of Science, Bangalore
64
 human beings, 5 impacts of contaminated water based on water

sample analysis, contamination of air and environment caused by

transportation in open trucks and dumping of dry coal ash,

settlement of blackish particles settle on leaves, clothes, objects

inside homes, food kept in open, etc. in core zone, salt deposits on

leaves and roofing tiles, corrosion of tin roofing sheets, agriculture

implements, etc. drying of leaves and leaf burn, etc. were noted.

Impact on people’s livelihood caused by various deleterious effects

within 2 km radius, i.e., core zone, impact on live stock and impact

on biodiversity had also been noticed. The study reveals that there

was gross environmental mismanagement which, in our considered

opinion, can be reasonably attributed to the casual manner in which

the project had been cleared and barely monitored. There is no

reason to doubt that this is a case of serial violations where the

violator has been given a free run.

141. There are also other serious concerns raised by the Applicant in

respect of the existing plant some of which we have pointed out in

the earlier part of this order that ought to have been addressed first

and deliberated by the MoEF&CC before granting the impugned EC

dated 01.08.2017. It may be pointed out that addition of capacity of

more than double the capacity of the existing plant will necessarily

have to be considered in the light of the possible escalation of impact

on the overall ecology and the environment of the area due to

increase in the population load. It is an accepted position, that

venturing for development activity on uncertain environmental

ramifications would be fraught with risk. Precaution would be the

need of the hour and sustainable development the goal with

intergenerational equity as the guiding factor.

142. The conduct of the MoEF&CC in the entire episode does not appear

to be above board. The Tribunal expresses grave anguish and

65
 concern which in our view ought to be corrected. We leave it upon

the MoEF&CC to deal with this aspect as their wisdom may dictate.

143. With reference to O.A. Nos. 578/2018, 579/2018 and 580/2018

and, Appeal No. 176/2018, we take note of the fact that the Phase-I

of the power plant has since been completed as both the units of

600 MW each have been synchronized with the power grid and,

therefore, is already supplying power. We are conscious of the

position that fait accompli situation should not and cannot be

permitted. We have held so in the case of S.P. Muthuraman vs.

Union of India & Ors.14 Unfortunately a fait accompli situation had

arisen. The question that now arises is as to whether the Tribunal

is helpless.

144. As noted already, in W.P. No. 21439/2005 while disposing off I.A.

No. V/06 seeking for an interim relief, the Karnataka High Court

had made it clear that all further action taken by the Respondents

during the pendency of the Writ Petition will be subject to the result

of the Writ Petitions. Keeping this in view, we have already held that

all Environment Clearances, i.e., EC dated 20.03.1997, expansions

dated 25.01.1999 and 09.09.2009 and the Comprehensive

Environment Clearance dated 01.09.2011 as unlawful and,

therefore, invalid.15

145. Justifiably, therefore, directions would be called for to remove the

plant and order for restoration of the area and the environment.

However, considering the facts and circumstances, the lapse of time

and the fait accompli situation that has arisen, we are of the view

that the interest of public will not be served in passing such order.

The need of the hour is to explore such measures and steps that

would mitigate the harm already caused in addition to ensuring that

the plant operates strictly within the environmental norms. We thus

14
2015 ALL (I) NGT REPORTER (2) (DELHI) 170
15
Para 102 of this order.
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 invoke the “Polluter Pays” principle under Section 20 of the National

Green Tribunal Act, 2010 and hold M/s. Udupi Power Corporation

Ltd., the Respondent No. 5, project proponent, liable to pay

Environmental Compensation which shall be assessed by a

Committee of Experts. We, accordingly constitute such a Committee

comprising of the following:

1. Senior Scientist, CPCB.

2. Senior Representative, IIT Chennai.

3. Senior Scientist, IIT Bangalore

CPCB shall be the nodal agency to coordinating amongst the

Members for taking up the task.

146. The Committee shall assess the environmental damage on account

of the environmental violations in the areas of fly ash management,

ash pond, ambient air quality, fugitive emissions, etc. which

undoubtly has caused severe damage to the environment and the

ecology of the area and submit its report within three months.

147. Awaiting such report, we direct M/s. Udupi Power Corporation Ltd.

to pay an interim Environmental Compensation ₹5 crores with the

CPCB. The interim compensation would be subject to assessment of

final damages by the Committee of Experts

148. This amount shall be deposited within a period of one month from

hence.

149. The CPCB, in the meanwhile, shall utilize the interim compensation

for restitution and remedial works for restitution of the environment

including the possible plight of the people affected by the plant.

150. We make it clear that this amount shall be distinct from the other

obligations of the project proponent under the Corporate Social

Responsibility (CSR) or other obligations.

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151. We have already held that the Environmental Clearance dated

01.08.2017 for expansion by addition of 2x800 MW (Phase-II)

Imported Coal based Super Critical Thermal Power Project at

Padubidri Industrial Area in Village Yellur, Taluk Udupi, District

Udupi, Karnataka, is bad inter alia for having failed to comply with

the mandatory requirement of holding public hearing in terms of

stage-III of the EIA Notification, 2006 read with Clause 7 (ii) thereof

and item 1(d) of the schedule to the said Notification, we direct that

there shall be no further activities in respect of the proposal for

expansion.

152. Before embarking upon it, we deem it appropriate to direct the

MoEF&CC to ensure that the project proponent carries out an

additional EIA study, in terms of additional ToR prepared pursuant

to our findings at paras 124 and 125 supra, followed by strict

observance of procedure under Stage-III of EIA Notification, 2006

before being finally placed for appraisal by the EAC for consideration

for grant of Environmental Clearance. Paras 124 and 125 referred

to above are reproduced below for convenience:

“124. The question that then requires determination is,

should the EC be quashed and set aside? After careful
consideration, we find that further studies are unavoidable in
order to ensure that the EIA is complete. We, therefore, direct as
follows:

(i) Baseline data of the area in relation to the existing

project of 2x600 MW shall be scrupulously collected;
(ii)
In addition to the above, the State of Karnataka shall
get a carrying capacity study of the area carried out.

(iii) The baseline data and the carrying capacity study

shall be considered as components for studying the
impact in relation to the proposed expansion;

(iv) Fresh public hearing shall be conducted strictly in

accordance with the procedure laid down in
Appendix IV of EIA Notification, 2006 ensuring wide
participation of the people affected by the project.

125. After completion of the above, report shall be

submitted to the MoEF&CC to be placed before the Expert
Appraisal Committee for appraisal as required under stage IV of
the EIA Notification, 2006.

The entire exercise shall be completed within a period of one

year. In the meanwhile, EC dated 01.08.2017 shall remain
suspended.”

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 Interim report shall be submitted every three months, first of

which shall be 17.07.2019.

153. It will only be after the aforesaid requirements are fully satisfied that

the MoEF&CC shall consider the grant of Environmental Clearance.

In the meanwhile, the impugned order dated 01.08.2017 shall

remain suspended and shall not be acted upon.

154. List this matter after three months in terms of the above direction

for consideration of the interim report and also to consider issuing

directions for payment of compensation.

155. The Respondent No. 5 shall pay a sum of ₹1 lakh, as cost to the

Applicant.

156. With the above directions, O.A. Nos. 578/2018, 579/2018,

580/2018 and, Appeal Nos. 176/2018 and 86/2018 are allowed in

part.

Adarsh Kumar Goel, CP

S.P. Wangdi, JM

K. Ramakrishnan, JM

Dr. Nagin Nanda, EM

March 14, 2019

Original Application No.578/2018
(Earlier O. A. No. 26/2013(SZ) (THC) and other connected matters
AVT

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