1

BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI

Appeal Nos. 21 of 2013 (SZ), 56 of 2013 (SZ) and

Application No. 152 of 2014 (SZ)

In the matter of Appeal No. 21 of 2013 (SZ)

1. Shri Thamme Gowda S/o. Channegowda Karoti Village, Krishnarajpete Taluk Mandya District – 571 426 Karnataka 2. Shri M.D. Yogesh S/o Shri M.S. Deve Gowda Makavalli Village, Krishnarajpete Taluk Mandya District- 571 426 Karnataka .. Appellants

AND 1. Union of India, through the Secretary Ministry of Environment and Forests, Paryavaran Bhavan, CGO Complex Lodhi Road, New Delhi-110 003

2. The Karnataka State Pollution Control Board Through the Member Secretary Parisara Bhavana, Church Street Bangalore -5600 001, Karnataka 3. M/s. Coromandel Sugars Ltd. Through its Director Coramadel Towers, No.93, Karpagam Avenue Santhome High Road, R.A. Puram Chennai-600 028 Tamil Nadu 4. The Deputy Commissioner Mandya City Mandya District ..

Respondents In the matter of Appeal No. 56 of 2013 (SZ) 1. M/s. Coromandel Sugars Ltd. Through its Authorised Signatory Makavalli Village, Krishnarajpet Mandya District – 571426 .. Appellant

2

AND 1. Shri Thamme Gowda S/o. Channegowda Karoti Village, Krishnarajpete Taluk Mandya District – 571 426 Karnataka 2. Shri M.D. Yogesh S/o Shri M.S. Deve Gowda Makavalli Village, Krishnarajpete Taluk Mandya District- 571 426 Karnataka 3. Union of India through its Secretary

Ministry of Environment and Forests Paryavaran Bhawan, CGO complex Lodhi Road, New Delhi- 110 003

4. The Karnataka State Pollution Control Board Through its Member Secretary Parisara Bhavana, Church Street Bangalore-560 001 Karnataka 5. The Deputy Commissioner Mandya City Mandya District .. Respondents In the matter of Application No. 152 of 2014 (SZ) 1. Shri Thamme Gowda S/o. Channegowda Karoti Village, Krishnarajpete Taluk Mandya District – 571 426 Karnataka 2. Shri M.D. Yogesh S/o Shri M.S. Deve Gowda Makavalli Village, Krishnarajpete Taluk Mandya District- 571 426 Karnataka .. Applicants

AND

1. The Karnataka State Pollution Control Board Through its Member Secretary Parisara Bhavana, Church Street Bangalore-560 001 Karnataka

3

2. M/s. Coromandel Sugars Ltd. Through its Director Coramadel Towers, No.93, Karpagam Avenue Santhome High Road, R.A. Puram Chennai-600 028 Tamil Nadu .. Respondents Counsel Appearing: Appellants in Appeal No. 21 of 2013 (SZ) .. M/s A. Yogeshwaran, Respondent Nos. 1 and 2 in Maitreyi Krishnan and Appeal No. 56 of 2013 (SZ) and applicants Clifton D’ Rozario, In Application No. 152 of 2014 (SZ) Advocates Appellants in Appeal No. 56 of 2013 (SZ), .. M/s. Sathish Parasaran, Respondent No.3 in R. Parthasarathy, Rahul Appeal No. 21 of 2013(SZ) and Respondent Balaji and Madhan Babu No. 2 in Application No. 152 of 2014 (SZ) Advocates Respondent No. 1 in .. Smt C. Sangamithirai Appeal No.21 of 2013 (SZ) and Advocate Respondent No. 3 in Appeal No. 56 of 2013 (SZ) Respondent No. 2 in .. M/s. R. Thirunavukkarasu Appeal No. 21 of 2013 (SZ) and and Swarnalatha Respondent No. 4 in Appeal No. Advocates 56 of 2013 (SZ) and Respondent No.1 in Application No. 152 of 2014(SZ)

COMMON JUDGMENT Present:

1. Hon’ble Shri Justice M. Chockalingam Judicial Member 2. Hon’ble Prof. Dr. R. Nagendran Expert Member

Dated, 12th May, 2015

1. Whether the judgement is allowed to be published on the internet. Yes

2. Whether the judgement is to be published in the All India NGT Reporter.

Yes

(Hon’ble Shri Justice M. Chockalingam, Judicial Member)

Appeal No. 21 of 2013 (SZ)

4

This is an appeal to challenge the Environmental Clearance (EC) under

the Environment Impact Assessment (EIA) Notification, 2006 and its

amendment in 2009 under the Environment (Protection) Act, (E P Act)

1986, granted by the Ministry of Environment and Forest (MoEF) vide

Order No. F. No. J-11011/565/2010-IA-II (I) dated 31.12.2012 to the

Molasses/Grain based Distillery (45 KLD), Co-generation Plant (30 MW)

and Captive Power Plant (1.5 MW) at S.F. No. 51 to come up in Makavalli

Village, Krishnarajpet Tehsil, Mandya District, Karnataka by the 3rd

respondent, M/s Coromandel Sugars Ltd. The Appeal is filed u/s 16(h) of

the National Green Tribunal (NGT) Act, 2010 as it challenges an order

given under the EIA Notification,2006 and its amendment in 2009 under the

E P Act, 1986 on 31.12.2012 i.e. after the commencement of the National

Green Tribunal Act, 2010.

2. According to the appellants, the proposed project consists of a

distillery, a cogeneration plant and power plant. The molasses-based

distillery has been classified as Category ‘A’ industry at Entry No. 5 (g) of

the schedule to the EIA Notification, 2006, and as Red Category industry

and in light of the same it was essential that the EIA was carried out in a

scientific and comprehensive manner so as to ensure that an independent

and objective assessment was done in the interest of the environment and

the local population in the vicinity of the proposed project. However, this

has not been done. The grant of EC is clearly in violation of the EIA 2006

and various judgments of the Hon’ble Supreme Court and High Courts and

therefore needs to be set aside. The project proponents have a long history

of causing environmental pollution in the operation of their sugar industry

on which premises the distillery, co-generation plant and power plant are

proposed and hence it is unjustified to permit another highly polluting

5

industry to be located in the same region with the grant of EC in such a

mechanical manner. The Environmental Appraisal Committee (EAC) has

failed to apply its mind to the facts and circumstances of the project and the

Terms of References (ToR) framed are not comprehensive and failed to

take into consideration the various social and environmental aspects and

also the probable environmental pollution and social impacts of the

proposed project.

i) The ToR have omitted the existing pollution caused by the sugar industry

and the implications of the same on the proposed new plants in the present

context.

ii) The ToR do not even make a mention of the Fly-ash Notification, 1999

as amended from time to time issued by the MoEF.

3. The entire approach of the EAC/MOEF has been to recommend the

project for approval without considering the ecological and socio-cultural

impacts of the projects and by turning a blind eye to the shoddy EIA report

prepared by M/s Enviro Care India Private Limited, the illegal manner in

which the public hearing was conducted and the report prepared and the

failure to consider the valid objections raised by the villagers including the

applicants. The non-application of mind by the Project Proponent and the

lack of scrutiny by the EAC and the MoEF where they have simply accepted

the submissions made by the project developer without any independent

verification is contrary to the precautionary principle. As per the accreditation

granted by the MoEF to M/s. Enviro Care India Private Limited, the company

is competent to take up Category ‘B’ projects and not Category ‘A’ whereas

the present project is categorized as Category ‘A’ and in the light of the

same the entire process of the grant of EC gets vitiated. The project

6

proponents and the EIA Report suppress the fact that the proposed project

is within 1.5 km of the River Hemavathi which is apparent even from the

records of the KSPCB. The KSPCB has stated that the distance between

the factory and the river is between 1.2 and 1.6 km. The establishment of

the proposed industry is contrary to the siting guidelines for new industries

brought out by the KSPCB applicable to the distilleries which state that ‘no

new industry shall be permitted to be established within 1.5 km from the

embankment of the streams, rivers, dams as indicated therein. If any of

these water bodies are the source of drinking water, then such distance shall

be stipulated which will not affect such waters by discharge of the pollutants.

All the land impacted by the Coromandel Distillery project and all the

components integral to the project have not been included in the

environment and social impact assessment, making the decision as one

based on this incomplete information and is therefore liable to be set aside.

4. The EIA Report does not meet ToR issues. The EIA report is of a

poor quality and indicates both the lack of authenticity and expertise of the

EIA consultants, showing a combination of poor secondary research of

scientific papers and poor fieldwork, and indicating a poor study of both

ecology and socio-cultural aspects in the EIA report. The concocted nature

of the draft EIA is exposed on perusing Chapter 3 of the Report titled

‘Existing environmental status’. A false claim is made that the baseline data

was monitored from April to June 2011 and secondary data was collected

from various government and NGOs, which is not made out in the Chapter.

No data in regard to the micro-meteorological conditions including

temperature, rainfall, relative humidity, wind direction, wind speed has been

collected at all, and instead all the data presented pre-date the TOR. The

baseline data of soil quality presented in the said chapter is undated and

7

bereft of the methodology adopted in regard to the sampling and

assessment of soil quality.

5. The quality parameters of ground and surface water resources are

unreliable since the same are bereft of any details in regard to the

methodology of sampling and details of testing. Further, there is no

assessment or even reference made to the Hemavathi River which flows at

a distance of less than 1.5 km from the site of the proposed project. There

is no reference made to the existing sugar industry and its impact on the

ambient air quality. The parameter regarding noise is also overlooked.

6. The studies on land-use which except for stating the objectives of

the land use provide no other details. The assessment of the biological

environment has been cursory and carried out without any sense of

responsibility. In the analysis of socio-economic environment, it is claimed

that the socio-economic study was carried out in a radius of 5 km at one

point, and at a later stage it is claimed that it was carried out in the villages

in 10 km radius. While it is stated that there are 8 villages in the 10 km

radius, in reality there are at least 15 Panchayats consisting of scores of

villages and several towns within the radius. It is falsely stated in the

evaluation of agriculture that there are insufficient irrigation facilities without

even making a reference to the surface irrigation through canals and

directly from the river. No reference is made in regard to the existing and

proposed industry around the industry in question and the pollution caused

by them and their impacts.

7. The EIA report states that there are no forest/wildlife within 25 km,

which is completely contrary to the existing facts. The Krishnaraya state

forest is within 4 km of the proposed project with various species of flora

8

and fauna. This is also mentioned in a report prepared by the Deputy

Environmental Officer, KSPCB, Mysore at the time of issuance of consent

for the establishment (CFE) of the sugar industry at Makavalli Village dated

26.02.1998 wherein it is stated that there is social forestry forest on the

North Eastern and the South Eastern direction at a distance of about 3 km

from the proposed site.

8. The claim in the EIA Report that there are no hill/mountains within

25 km is false as there is mountainous region with forest within 4 km of the

proposed project. The claim that there are no historical places within 25 km

of the project is false since there are several historical and archaeological

sites within 10 km of proposed plant. The ‘Impact Analysis’ in Chapter 4 of

the EIA report is speculative and without any scientific or rational basis.

Only a cursory understanding of the impact during the construction phase

is made which is unreliable and unscientific. There are no details on the

effect of the distillery plant or the power plant or the cumulative effect of the

same during the operational phase. There is absolutely no scientific

analysis of the impacts that the project would have in regard to the air

environment. The draft EIA report lacks the standards set in the ‘Technical

EIA Guidance Manual for Distilleries’ prepared for the MoEF by IL & FS

Ecosmart Ltd. Neither the appellants nor the other villagers were apprised

of the nature of the public hearing, let alone the EIA process. The public

hearing was carried out in an improper, faulty and farcical manner, and in

violation of the EIA Notification, 2006 and the established law. The

approval granted and the proceedings of the EAC reveal non-application of

mind and are also contrary to principles of administrative law which

requires that reasons be given for every decision by a public authority. The

9

EC granted is based on false and fabricated information, which has been

blindly believed, despite objections being raised against it.

9. The water requirement for the proposed distillery, cogeneration and

power plants are sought to be met entirely from the Hemavathi river flowing

nearby which is impermissible in view of the fact the 3rd respondent has

permission to draw water from the Hemavathi river directly only for the

purposes of running the sugar factory. Further, it is the major source of

drinking water for K.R.Pete Taluk. Hence, the allocation for the proposed

project is also contrary to the National Water Policy, 2002.

10. The project proponents have already begun construction activities

towards establishment of the project without even securing all the

necessary clearances, permissions and NOCs including the CFE from the

KSPCB.

11. Per contra, the 1st respondent, MoEF would state in reply that EC

was granted on 31.12.2012 by the MoEF to the molasses based distillery of

the appellant company by following the provisions of the EIA Notification,

2006. The ToR was granted on 23.03.2011 after due appraisal by the EAC

on 23.03.2011 in the meeting held on 4th March, 2011. The Public Hearing

was conducted by the KSPCB on 09.12.2011. The EC was granted on

31.12.2012 after the recommendation of the EAC which appraised the

complete proposal in its meeting dated 24.09.2012. The EIA report was

prepared and presented before the EAC by M/s. Teams Labs Ltd.,

Hyderabad which is an accredited ‘A’ category Environment Consultant and

it is for the respondent Nos. 2 and 4 to verify the compliance of the

environmental safeguards.

10

12. The 2nd respondent, namely, the KSPCB would state in reply that

the 1st respondent, MoEF granted the EC on 31.12.2012 to the 3rd

respondent to proceed with the project, namely, molasses/grain based 30

MW co-generation plant and captive power plant in Makavalli village,

Krishnarajapet Tehsil, Mandya District in the State of Karnataka and the 3rd

respondent has envisaged the proposed plant at its existing sugar plant

premises located in the above village which was established in the year

1999. The officers of the KSPCB have periodically conducted checks to

ascertain whether there were any violation on the part of the 3rd respondent

with respect to the conditions imposed in the consent issued to run the

factory which would possibly cause damage to the environment. At the time

of any violation noticed by the KSPCB, the same was informed and the 3rd

respondent had taken proper action. As per the Notification dated

14.09.2006 of the MoEF, the public hearing was conducted by following the

procedure laid down and minutes of the public hearing were recorded. The

EC was issued to the 3rd respondent on 31.12.2012 after appraisal by the

EAC based on the approved ToR and after public hearing proceedings

were approved by the 1st respondent. It is true that a section of the farmers

and villagers in the neighbourhood of the industry aggrieved by the grant of

EC by the 1st respondent protested the establishment of the distillery and

co-generation plant. The executive summary of the EIA report prepared by

the 3rd respondent both in English and Kannada along with the copy of the

report in English were placed for public view during the public hearing

proceedings. It is not correct to say that the 3rd respondent is consciously

avoiding informing the Panchayats and towns falling within the 10 km

radius of the proposed project. The 2nd respondent has always been taking

appropriate steps to ensure that there were no violations relating to EC on

11

the part of the 3rd respondent and the 2nd respondent has taken action

wherever violations are noticed. The 2nd respondent has been closely

monitoring the activities of the 3rd respondent and in pursuance of the steps

taken by the 2nd respondent, the 3rd respondent had taken steps to improve

the pollution control measures by adopting effective effluent treatment

methods for treating the sugar and co-generation effluent. The 3rd

respondent has taken necessary measures to treat the effluent through the

effluent treatment plant (ETP). The Hemavathi River flows at a distance

about 2 km from the proposed project and hence the said project would not

be contrary to the siting guidelines. The EC was granted to the proposed

project only after following the rules and regulations in this regard and the

2nd respondent is continuously monitoring the activities of the 3rd

respondent and incidences of violation of the conditions are being informed

to the 3rd respondent. However, in view of widespread agitation by a

section of the local farmers, the 2nd respondent issued stop work order to

review the matter afresh.

13. The 3rd respondent, namely, the Coromandel Sugars Ltd., would

state in reply that the company is operating a sugar industry with a capacity

of 3500 TCD located at S.F.No. 151, Makavalli village, Krishnarajpet Tehsil,

Mandya District, Karnataka since May 1999 with all approvals granted by

the 1st and 2nd respondents. The very object of setting up the co-generation

plant and the distillery unit are part of the policy initiative of the Government

of India to devise measures to increase the economic prosperity of agro-

based industry. The country is facing an enormous challenge to its power

resources and bagasse based generation is a non-conventional energy

source. Utilizing biomass is an important strategy of the Government of

India for both increasing the capacity of power generation and ensuring

12

environment-friendly practice as a substitute for conventional power

generation. The 3rd respondent facilitates several developments and socio-

economic aspects of the local population and there is extensive support for

the project at the proposed location.

14. The 3rd respondent made an application to the 1st respondent to

establish a molasses/grain based distillery, co-generation plant and captive

power plant (CPP) as part of the distillery at the project location and after

complying with all the requirements of EIA Notification, 2006. The 3rd

respondent received the EC on 31.12.2012. As part of its compliance with

the requirements of the EIA Notification, 2006, the 3rd respondent,

submitted the EIA report to the 1st respondent with all details and material.

It is pertinent to note that the appellants have filed the appeal with the draft

report filed by the 3rd respondent and all the allegations made by the

appellants are based only on the draft report and not on the final EIA report

which was filed with the 1st respondent along with all the attachments and

enclosures as required by the 1st respondent.

15. The second respondent also granted its CFE vide a

communication dated 24.04.2013 for the establishment of the co-

generation plant. The 3rd respondent commenced the expansion of the co-

generation plant complying with the terms and conditions of the 2nd

respondent. The 3rd respondent has invested substantial financial

resources and time to carry out the construction and expansion. The 3rd

respondent is constantly commissioning new technologies to ensure that

state of the art pollution control equipment is used at the project location.

16. The appellants have filed the appeal before this tribunal against

the decisions of the first, second and 4th respondents based on certain

13

vested interest and have been inciting a few sections of the local population

against the 3rd respondent by spreading misleading information and

rumours about the operations of the 3rd respondent and are creating

opposition to the project and law and order problems in and around the

project location even though the project is supported overwhelmingly by the

surrounding population and the sugarcane farmers. The 3rd respondents

have also received a communication on 15.06.2013 wherein the 2nd

respondent as directed the 3rd respondent to stop all construction works

relating to the expansion of the co-generation plant until further orders.

17. The present appeal has been filed by the appellants by making

vague allegations without any substantial or specific grounds justifying the

relief sought for. The EC for the project at the project location has been

issued by imposing stringent conditions which are and will be fully complied

with by the 3rd respondent. The Appeal is based on presumptions and

surmises without demonstrating the breach of any specific provision or

regulation in any manner. The appeal also proceeds on the basis that the

co-generation plant and the distillery would automatically have a negative

impact upon the environment but does not specify any reference to the ToR

of the EC granted which completely negate the possibility of any adverse

impact. The 3rd respondent has maintained absolute compliance with the

public hearing process and therefore is flawless and this was reviewed by

the EAC of the 1st respondent. Appellants have also sought to project this

case as if there is tremendous public opposition to the project while the

project has been largely welcomed as it would lead to better economic

development in the area. The clearance has also been challenged on

vague grounds being within the vicinity of Hemavati River and there are

14

certain areas notified by the Archaeological Survey of India (ASI) which are

within the prohibited distance are denied as incorrect.

Appeal No. 56 of 2013 (SZ)

18. This Appeal, by an order dated 23.07.2013 of the Tribunal is

converted from the Miscellaneous Application No. 106 of 2013 (SZ) in

Appeal No. 21 of 2013 (SZ) filed by the 3rd respondent, namely, the

Coromandel Sugars Ltd. in Appeal No. 21 of 2013 (SZ) against the stop

work order of all construction works related to the expansion of co-

generation plant order issued by the 4th respondent herein, namely, the

KSPCB, who is the 2nd respondent in Appeal No. 21 of 2013 (SZ) by a

communication made in No. PCB/111/HP1/2013/2014 dated 15.06.2013.

The EC for the said plant was granted by the 3rd respondent in this

application and 1st respondent in Appeal No. 21 of 2013 (SZ) on

31.12.2012 based on the EAC recommendation for the establishment of a

molasses/grain based distillery, co-generation plant and CPP at the project

location. Even during the pendency of the proceedings by the 1st and 2nd

respondents in this appeal and appellants in Appeal No. 21 of 2013 (SZ),

after specifically praying for interim orders and subsequent to the matter

being adjourned for counter and hearing on merits, have sought to indulge

in objectionable pressure tactics. The 4th respondent herein and the 2nd

respondent in Appeal No. 21 of 2013 (SZ) has issued a communication to

the Karnataka Rajya Raitha Sangha on 14.06.2013 informing that their

agitation against the appellant’s operations at the project location could not

be addressed by the 4th respondent herein and the 2nd respondent in

Appeal No. 21 of 2013 (SZ), as the matter was before this Tribunal and that

any action may be contempt of court by the 4th respondent herein and the

15

2nd respondent in Appeal No. 21 of 2013 (SZ). The appellant herein was

shocked to receive the stop work order on the very next day on 15.06.2013

wherein the 4th respondent herein and the 2nd respondent in Appeal No. 21

of 2013 (SZ), namely, the KSPCB directed the appellant herein to stop all

the construction work related to the expansion of the co-generation plant

until further orders and further indicated that the KSPCB is reviewing the

consent orders granted to the appellant. The appellant herein, by a

communication dated 19.06.2013 responded to the same and indicated

about the crucial stage of the construction work and even agreed not to use

the coal as an auxiliary fuel until decision in the appeal is made by the

Tribunal. As the KSPCB did not reply to the communication from the

appellant herein after receipt of the stop work order, the appellant herein

was forced to issue a legal notice to KSPCB seeking withdrawal of the stop

work order. The stop work order issued by the KSPCB was without any

notice and ultra vires of the provisions under section 27 (2) (a) of the Water

(Prevention and Control of Pollution) Act, 1974 (Water Act) and under

section 21 (6) of the Air (Prevention and Control of Pollution) Act, 1981 (Air

Act) and the KSPCB has no power to review the consent granted by it, but

can only review the conditions set forth therein for the purpose of making

any reasonable variation or revoking the condition.

19. Per contra, the 4th respondent herein and the 2nd respondent in

Appeal No. 21 of 2013 (SZ), namely, the KSPCB would state in reply that

the farmers and the villagers in the neighbourhood of the industry are

aggrieved by the EC granted by the MoEF, the 3rd respondent herein and

the 1st respondent in Appeal No.21 of 2013 (SZ) for the establishment of

the distillery as well as the co-generation plant and the appellant has

started construction for the said project which has irked the farmers

16

residing in the vicinity of the said plant. The agriculturists are dependent on

the Hemavathi river which is very close to the proposed project for their

agriculture and drinking water needs. The farmers are agitating against the

establishment of the proposed project. In view of the widespread agitation

over this issue and as the matter is already pending before the Tribunal,

the KSPCB decided to review the consent issued for the establishment of

co-generation plant using bagasse and 15% coal auxiliary fuel issued on

24.02.2013 as per section 27 (2) (a) of the Water Act and section 26 of the

Air Act. Hence the KSPCB issued notice to the appellant on 15.06.2013

directing the appellant to stop construction work relating to the expansion of

co-generation plant and to file objections within 7 days from the receipt of

the said notice. The villagers in the nearby vicinity of the industry have

made several demands in respect of the proposed project through their

letter dated 14.06.2013 and have also explained their objections to the

project to the officers of the KSPCB and the troubles they are likely to face

from the proposed project. In view of the objections raised by the farmers

and due to widespread agitation against the coming up of the proposed

project in the neighbourhood of the industry, it became necessary to review

and assess the situation afresh with respect to the grant of permission to

establish co-generation plant with bagasse and 15% coal as an auxiliary

fuel. The KSPCB, therefore, issued the stop work order to the appellant.

The demands of the farmers are, (i) to drop establishment of the distillery,

(ii) not to allow the usage of coal along with bagasse as fuel in the co-

generation plant, (iii) to provide water meter to pump and to draw only

approved quantity of water, ((iv) to form a Local Area Pollution Control

Committee and (v) to conduct public hearing for the establishment of the

co-generation plant and distillery. Hence, the KSPCB had to address the

17

demands. The KSPCB reviewed the environment management system of

the appellant vis-a-vis the consent for the establishment granted for the

establishment of co-generation plant through the Technical Advisory

Committee of the Board on 24.07.2013.

20. The KSPCB issued the consent letter dated 24.04.2013 imposing

several conditions relating to control measures in water, air, solid waste

management disposal, the use of coal as an auxiliary fuel etc. which the

appellant is bound to follow. Since the villagers and farmers have raised

several issues regarding pollution and damage that the proposed project is

likely to cause to the environment, it became necessary for the KSPCB to

review the matter afresh. The KSPCB reserves the right to review, impose

additional conditions, revoke, change or alter the terms and conditions of

the consent letter granted to the appellant.

Application No. 152 of 2014 (SZ):

21. This application is filed by the applicants herein who have also

filed Appeal Nos. 21 of 2013 (SZ) challenging the combined consent order

for the establishment of expansion of co-generation plant capacity from 12

MW to 30 MW by installing a new boiler of 140 TPH along with 1000 kVA

DG set, coal crushers and bankers at S.F. No. 151, Makavalli village, KR

Pete in Mandya District granted by the 1st respondent, KSPCB in favour of

the 2nd respondent company herein under section 21 of the Air Act and

section 25 of Water Act. The applicants herein are also challenging the

subsequent decision taken by the Consent Committee of the 1st respondent

dated 05.12.2013 and the report of the 1st respondent dated 10.12.2013.

The applicants herein state that this application is filed before the Tribunal

18

as the Appellate Authority under the Air Act and Water Act for the State of

Karnataka is defunct now and has not been reconstituted so far.

22. The applicants who are the residents of the villages in the vicinity

of the 2nd respondent’s proposed project are aggrieved by the unilateral,

baseless and illegal decision of permitting the 2nd respondent to establish

the project. The applicants are agriculturists growing coconut, ragi,

sugarcane, paddy, arecanut, pulses, vegetables, and other crops in their

lands. They are also engaged in animal husbandry having buffaloes, cows,

goats, sheep and hen. They are greatly depending on the Hemavathi river

for their agriculture and drinking water and the river is the lifeline of the

taluk. The Hemavathi river supplies drinking water to all major towns in the

taluk including KrishnarajapetTown and Akkihebbal Hobli both are within 10

km of the proposed project. At present, the work is underway for providing

drinking water to the Sheelanare Hobli and Buknakere Hobli. There are

numerous Gram Panchayats consisting of many villages and towns which

are within 10 km radius of the proposed project and most of them are

clueless of the project, its nature, impact on their lives, livelihoods and the

environment. The said project involves the setting up of the molasses/grain

based distillery (45 KLD), co-generation plant (30 MW) and captive power

plant (1.5 MW) and the EC was granted on 31.12.2012 by the MoEF which

is challenged in Appeal No. 21 of 2013 (SZ) at this Tribunal separately.

23. The 2nd respondent company is envisaging the proposed plant at

its existing sugar industry premises located at S.F. No. 141, Makavalli

village, Krishnarajpet Tehsil, Mandya District, Karnataka which was

established in the year 1999 in an extent of 99 acres of land. Over the

years, the said factory has caused grave and irreversible air and water

19

pollution including pollution to the Hemavathi river into which it is directly

discharging its untreated effluent which has been recorded by the 1st

respondent, KSPCB. Despite the same, the 1st respondent has granted the

impugned order of consent.

24. The KSPCB and the District Administration have repeatedly taken

cognizance of the pollution as apparent from the records produced herein

and there may be several other such records in the possession of the 1st

respondent, KSPCB. An inspection was conducted by the Deputy

Environment Officer, Mandya on 19.11.2013 in which it was reported that

the factory authorities have not complied with the terms and conditions of

the order of the consent. Further, the Deputy Environment Officer has

recommended that prohibitory order under section 32(1) of the Water Act

be issued and appropriate legal action be initiated against the 2nd

respondent company. The KSPCB has referred to a series of complaints

received from the Gram Panchayats, organizations and residents of various

villages and towns. Repeated complaints were made by various people and

representatives regarding the pollution caused by the 2nd respondent

industry. The KSPCB sent notice to the 2nd respondent industry on

27.12.2012 about the receipt of complaints on the discharge of effluent in

Hemavathi river and calling for immediate action in this regard. On

08.03.2013, the KSPCB sent notice to the 2nd respondent industry stating

that the effluent was not conforming to the standards laid down by the

KSPCB. The Chairman, KSPCB visited the 2nd respondent industry on

29.03.2013 and found that the 2nd respondent industry was violating

several environmental norms and had also failed to provide an ash pond. It

was further observed that the pollution caused by the 2nd respondent

industry had caused great harm to the nearby villages including the

20

Hemavathi river. Despite the various complaints by the villagers and threat

of action by the KSPCB, the 2nd respondent industry continued to operate

showing scant respect for environmental norms and detrimentally affecting

the lives and livelihoods of the villagers. The impugned order of consent

has been granted by the 1st respondent, the KSPCB to the 2nd respondent,

industry without application of mind and without consideration of the fact

that the 2nd respondent was continuing its existing operations violating the

conditions imposed in the consent and environmental norms.

25. The villagers were completely oblivious about the proposals

regarding the distillery, co-generation plant and power projects by the 2nd

respondent and were aware of them when rumours began floating around.

In fact, 0n 02.02.2011, the residents of Makavalli village and other villages

issued a letter to Makavalli Gram Panchayat raising objections to the

establishment of the distillery. The villagers have specifically raised the

grievance that the pollution already being caused by the 2nd respondent’s

sugar factory is causing illness among the villagers and has resulted in

social and environmental damage.

26. The EC granted to the 2nd respondent industry is also improper

without proper EIA and Public Hearing and is in violation of the E P Act,

1986 and the said grounds are being urged before the NGT. The public

hearing and consultation were not properly conducted in the manner

prescribed under law and in violation of EIA Notification, 2006. These

developments created a lot of fear and insecurity among the villagers and

they tried to understand the implications of the proposed project from the

local officials of the KSPCB, but to no avail. After making due enquiries and

trying to understand the expected impacts of the proposed project, the

21

villagers decided to oppose the same and began raising their voice against

the same. There is strong opposition to the establishment of the said

industry by the villagers. The Farmers Organizations have also voiced their

opposition to the proposed projects on various grounds and made a

representation to the Deputy Commissioner on 09/12/2011 along with the

details of the detrimental impacts of the pollution of air, land and water by

the operation of the sugar industry and the manner in which this will be

worsened by the establishment of the new proposed projects. A large

number of persons from villages and towns that would be impacted were

unaware of the “public hearing”. On 14/12/2011 the villagers of Makavalli,

Karoti, Kariganahalli, Heggadahalli, Vaddarahalli, Kundanahalli, Lingapura,

Krishnapura, Kuppahalli, Mallenahalli and other villages submitted another

representation to the Deputy Commissioner requesting that the proposed

plant should not be granted permission to be established.

27. The Hemavathi river and the forest area are very close to the

proposed project, a bird sanctuary on the river Hemavathi is also nearby

and that several archaeologically and culturally important sites including

Hemagiri Shriranganatha temple, Hoshollalu, Chalukya Hoysaleshwara

temple, Narasihmaswamy Temple and Panchalinga Temple are within 10

km radius of the proposed plant. Various Panchayats and Towns falling

within the 10 km radius of the proposed project have raised objections to

the proposed plant on knowing about the establishment of the proposed

project. A resolution was passed by the Bandihole Gram Panchayat dated

15/06/2012 to send letter to Makavali Gram Panchayat against the

establishment of the Project. On 10/08/2012, the Chowdenhalli Gram

Panchayat also passed a resolution against the establishment of the

Project. The villagers, including the applicants herein, were kept completely

22

in the dark of the subsequent developments. The EC was granted to the 2nd

respondent about which the villagers and the applicants were not aware.

28. The 2nd respondent started construction even prior to the

issuance of the consent for establishment. The Applicants and other

villagers observed that construction activity for the proposed Distillery and

the co-generation plant were commenced in the Sugar Industry premises.

In fact, a notice was issued by the 1st respondent to the 2nd respondent

industry dated 13/03/2012 on the basis of an inspection conducted on

06/03/2013 and 11/03/2013. The 1st respondent in an arbitrary and opaque

fashion granted the CFE for expansion of Co-generation plant capacity

from existing 12 MW to 30 MW by installing a new boiler of 140 TPH along

with 1000 KVA DG Set, coal crushers and bankers to the 2nd respondent.

The impugned order of consent has been granted without taking into

consideration the already existing pollution being caused by the 2nd

respondent industry and the further grave pollution that would be caused by

them.

29. Subsequent to the grant of the consent for establishment, many

people including farmers and other persons residing in nearby villages and

towns were compelled to raise their voice collectively using all available

constitutional means to highlight the pollution that has been already caused

by the 2rd respondent and the further pollution they apprehended with the

expansion. They also brought to the attention of the 1st respondent KSPCB

that the 2nd respondent had a long history of causing pollution having

serious impact on the villages and towns nearby, which was documented

by the 1st respondent KSPCB itself. The lives of the people of the villages

and towns have been fundamentally altered due to the extreme pollution

23

and they have repeatedly requested the KSPCB to take action against

them. In light of the above aspects, the 1st respondent decided to review

the CFE granted to the 2nd respondent Industry and issued a notice dated

15/06/2013 directing the 2nd respondent to stop construction work related to

the expansion of the co-generation plant. The 1st respondent had also

constituted a Committee to review the consent granted in favor of the 2nd

respondent. The 2nd respondent has approached this Tribunal in Appeal

No. 56/2013 seeking for a direction to the 1st respondent to withdraw the

stop work order. The 1st respondent assured the villagers and farmers that

their concerns would be looked into and the CFE that had been granted

would be reviewed. Thereafter, the 1st respondent without providing any

information or notice to the applicants or to any other affected persons

unilaterally and arbitrarily conducted a review and allowed for the grant of

CFE to the 2nd respondent. The question of consent was discussed in the

373rd Technical Advisory Committee of the 1st respondent which shows that

several questions were raised. Though the 1st respondent industry was

present, none of the villagers or affected persons was called for the said

meeting. A meeting was stated to be conducted by the 1st respondent on

01/08/2013. The said meeting itself is in violation of the principles of natural

justice, since although the industry has been asked to participate, no such

opportunity of hearing was granted to the villagers and other persons from

nearby towns who have objected to the grant of this consent. Further, they

were also not given any opportunity to respond to the presentation made by

the respondent industry and to give their opinion in regard to the use of

coal. In the said meeting, it appears that certain information was sought for

from the 2nd respondent. Thereafter, the 1st respondent had another

meeting on 29/10/2013. This meeting is in violation of the principles of

24

natural justice, since although the industry has been asked to participate,

no such opportunity of hearing was granted to the villagers and other

persons from nearby towns who have objected to the grant of this consent.

In this meeting the Technical Advisory Committee failed to recognize the

high degree of pollution already caused by the 1st respondent sugar

industry and their failure to comply with environmental norms.

30. Thereafter, in the meeting conducted by the Consent Committee

on 05/12/2013, the Consent Committee recommended that the 2nd

respondent be permitted to use 15% coal as auxiliary fuel along with

bagasse with certain conditions. Subsequently, a report dated 10/12/2013

was prepared by the 1st respondent with regard to the use of coal as

auxiliary fuel in the co-generation plant of the 1st respondent. The said

permission has been accorded by the 2nd respondent with the condition that

the industry shall meet the emission norms of particulate matter less than

50 mg/Nm3. The prior history of the 2nd respondent industry would disclose

that they have been consistently in violation of the said emission norms of

particulate matter. By allowing the use of coal in an already polluting

industry it would only cause more pollution. An extract of the findings of the

analysis reports reveals the high levels of pollution being caused :

Sl No. Date of

collection

Environmental

Norm to be

maintained

Result

(Mg/Nm3)

1. 20/02/2007 50 161

2. 29/03/2007 50 707

3. 11/05/2007 50 514

25

4. 22/09/2007 50 705

5. 23/10/2007 50 1211

6. 27/11/2007 50 1199

7. 15/12/2007 50 560

8. 21/01/2008 50 509

9. 08/02/2008 50 406

10. 12/03/2008 50 586

11. 11/04/2008 50 411

12. 06/06/2008 50 299

13. 27/09/2008 50 223

14. 14/10/2008 50 252

15. 22/05/2008 50 392

16. 29/08/2009 50 163

17. 25/09/2009 50 208

18. 31/10/2009 50 280

19. 26/11/2009 50 168

20. 24/12/2009 50 192

21. 08/03/2010 50 162

22. 26/08/2010 50 224

23. 23/09/2010 50 182

24. 20/04/2011 50 198

26

25. 18/10/2011 50 186

26. 24/09/2011 50 227

27. 03/12/2011 50 178

28. 28/08/2012 50 181

29. 01/10/2013 50 175

31. The 1st respondent also failed to take into account the impunity

with which the 2nd respondent had started construction before the grant of

necessary approvals, and further they have continued construction even

after the KSPCB issued an order for them to stop work and construction.

Letter issued by the Mysore Zonal Office, KSPCB to the Member Secretary

dated 18/03/2013 along with photographs indicates the civil works under

progress without obtaining the CFE. In Appeal No. 21/2013, the 2nd

respondent on 02/07/2014 gave an undertaking before this Hon'ble

Tribunal that they would not proceed with the work. Even after an

undertaking was given by the 1st respondent before this Authority to stop

work, the 1st respondent continued the work. Hence, the 1st respondent has

failed to consider the continued violations of the 2nd respondent and without

any application of mind have granted the said consent.

32. Hence, by way of this application, the applicants herein are

challenging the CFE for expansion of the co-generation plant capacity from

existing 12 MW to 30 MW granted by the 1st respondent in favour of the 2nd

respondent, the subsequent decision taken by the Consent Committee of

the 1st respondent dated 05.12.2013 and the report of the 1st respondent

dated 10.12.2013.

33. The 1st respondent to this Application, namely, the KSPCB would

27

state in reply that the applicants have already filed Appeal No. 21 of 2013

before the Tribunal with regard to the same subject for stay of the EC

granted by the MoEF dated 31.12.2012 to the 2nd respondent herein to

proceed with the project, namely, molasses/grain based distillery (45 KLD),

co-generation plant (30 MW) and captive power plant (1.5 MW) which was

envisaged at the 2nd respondent’s existing sugar plant located at Makavalli

village, Krishnarajpet Tehsil, Mandya District which was established in the

year 1999 and the above appeal is pending for adjudication before this

Tribunal. The applicants have now purported to challenge the CFE granted

by the 1st respondent for expansion of the capacity of the co-generation

power plant from 12 MW to 30 MW by the 2nd respondent in the above

project. The CFE was issued only after completely analyzing the existing

pollution load after expansion and the proposed pollution control equipment

and taking into consideration the technical facts. The 2nd respondent has

provided a common chimney for a height of 60 m with ventury scrubber as

air pollution control equipment/device in the 12 MW co-generation power

plant for control of emission. When the plant is expanded, the old boiler and

scrubber provided for the air pollution control will be replaced with a new

140 TPH capacity boiler and Electro Static Precipitator which is the most

efficient air pollution control device. The said device has 99% efficiency in

controlling the pollution and the height of the chimney is 90 m.

34. The 2nd respondent has provided ETP and treated effluent is

being used on land for irrigation. Whenever complaints were received by

the 1st respondent with regard to any violation of pollution norms, they were

taken cognizance of and the 1st respondent had also conducted several

checks periodically to ascertain whether there were any violations on the

part of the 2nd respondent and the 1st respondent is closely monitoring the

28

activities of the 2nd respondent. It is incorrect to state that the 2nd

respondent is having a long history of environmental pollution. In

pursuance of the steps taken by the 1st respondent to improve the pollution

control measures by adopting an ETP for treating the sugar and co-

generation effluent, monitoring of treated trade effluent and emission

through boiler chimney was carried out in the year 2013-14 during crushing

season.

35. A Show cause notice was issued by the Regional Senior

Environmental Officer, Mysore, dated 13.05.2013. The 2nd respondent has

not filed application with the 1st respondent, KSPCB for establishment of

distillery. The 1st respondent has issued Consent for Establishment only for

expansion of co-generation power plant and the same had been granted

only after MoEF has issued Environmental Clearance for the said project

on 31.12.2012. The 1st respondent submits that whenever there are any

complaints regarding violation of pollution control norms by the 2nd

respondent this respondent had immediately taken cognizance of the same

and directed the 2nd respondent to take corrective measures.

36. The 1st respondent denies the allegation that the CFE for the

expansion project was granted without application of mind and it was

issued only after the EC from MoEF after duly complying with all the

procedures which are generally followed in such matters.

37. The 2nd respondent industry has carried out the EIA study as per

the EIA Notification, 2006 and a public hearing was also held. The EC was

granted by MoEF after appraisal of the EIA report. The 2nd respondent has

provided ETP and the treated effluent is used on land for irrigation. The 1st

respondent had issued notices to the 2nd respondent industry and ensured

that the corrective actions were taken by the industry. It is true that the

29

Technical Advisory Committee meeting was held on 29.10.2013 and the

villagers and the public were not invited to the said meeting as it was a

technical deliberation to examine the use of coal and bagasse as fuel in the

co-generation power plant by the 2nd respondent. The averment relating to

the emission norms is not true. The emission norm of particulate matter is

fixed less than 50 mg/Nm3 for the existing boiler. For the present operating

boiler of capacity 2 × 40 TPH, the particulate matter emission is fixed at

less than 100 mg / Nm3. This limit is stipulated by the MoEF while issuing

EC dated 31.12.2012 for co-generation boiler of 140 TPH capacity. The

CFE issued by the 1st respondent dated 24.04.2013 for expansion of co-

generation plant has stipulated 50 mg/ Nm3. It is true that the industry has

not met the emission standards prescribed from the existing activity. Even

though the industry has upgraded the air pollution control equipment

periodically from cyclone separator to the wet scrubber during 2009, with

the new ESP the emission norms are likely to be met with.

Several stipulations relating to the restricted use of coal have been laid in

the CFE to ensure that there is no damage to the environment and the 1st

respondent is periodically checking the same. Hence, the 1st respondent

reiterates that the CFE for expansion has been granted to the proposed

expansion of co-generation power plant from 12 MW - 30 MW only after

following all the rules and regulations as per the EIA Notification, 2006 and

the 1st respondent is closely monitoring the activities of the 2nd respondent.

38. The 2nd respondent, namely, the Coromandel Sugars Ltd, would

state in reply that this application has been made by the applicants before

the Tribunal only to prolong the litigation relating to the project and at the

behest of certain vested interest and the application is devoid of merits and

is based on incomplete information and / or suppression of relevant facts.

30

The allegation that the 2nd respondent has a long history of environmental

pollution is denied. The applicants have sought to make a selective

reference to allegations of non-compliance with the main norms of the pre-

existing unit of the 2nd respondent at the project location while at the same

time suppressing the opinion of the regular tests that are being conducted.

39. The allegations made to the effect that the surrounding villages

were clueless about the project are false, baseless and misleading. The

public hearing was conducted in accordance with all the requirements of

the same after widely announcing the same in the surrounding villages.

The persons from surrounding villages had attended the public hearing and

the minutes of the proceedings were recorded which were also provided to

the EAC along with the EIA report. Several actions were undertaken to

address the concerns raised by the villagers at the public hearing including

arrangements for the representatives of the local population to make a trip

to other similar industries with regard to safety and other issues which

could be practically understood by the local population. The reports along

with the Executive Summary were placed at various offices in Mandya

District and Bangalore. It is denied that that the 2nd respondent industry has

caused grave and irreversible pollution. The 2nd respondent made an

application to MoEF and the 1st respondent, KSPCB, and only after

intensive review of the project the approval to establish the project was

granted by the 1st respondent, KSPCB.

40. The allegation that the 1st respondent, KSPCB, has granted the

CFE without application of mind is false and baseless. The applicants have

highlighted certain minor non-compliances of the 2nd respondent as far

back as 15 years and are now making reference to certain correspondence

between the 1st respondent and 2nd respondent in an attempt to paint a

31

picture as if the 2nd respondent industry is a polluting industry without

providing any proof. The 1st respondent, KSPCB, has over the past at

regular intervals sought clarifications from the 2nd respondent on the

aspects of its operations at the project location which were responded by

the 2nd respondent to the satisfaction of the 1st respondent, KSPCB. The

reference made to a letter of the District Commissioner, Mandya refers to

an inspection carried out at the factory premises to review the pollution

control systems installed by the 2nd respondent at the factory. There have

been no instances of overflow of effluent in the recent past and the 2nd

respondent has set up an extensive and effective ETP by increasing the

capacity from 600 to 1500 KLD. With the implementation of this technology

there is no possibility of any risk of discharge any more. The officials of the

1st respondent, KSPCB, submitted certain findings to the Chairman of the

KSPCB, pursuant to which the 2nd respondent was given a personal

hearing to clarify on such findings and to review the upgrading of the

pollution control equipment of the 2nd respondent. The 2nd respondent had

submitted a reply on 17.12.2011 stating the various steps and measures

that are being taken in compliance of the requirements. The 2nd respondent

had also undertaken to close the pond in its premises in response to the 1st

respondent, KSPCB, and has established an effective ETP so that there

would be no possibility of discharge thereafter.

41. The 1st respondent, KSPCB had conducted an inspection of the

factory and had called the managers for a personal hearing to discuss

certain on-going compliances. Pursuant to the hearing, the 1st respondent

had even submitted an undertaking on several steps to ensure that there

was no pollution discharged outside the factory. The applicants have made

misleading statements in an attempt to portray that a public hearing was

32

held to discuss the non-compliances of the 2nd respondent, when in fact the

document submitted by the applicants are the minutes of a personal

hearing granted to the 2nd respondent to discuss the on-going compliances

at the factory as already stated. The 2nd respondent had even submitted an

undertaking pursuant to this personal hearing on the steps to ensure that

there was no pollution from the discharged effluent outside the factory to

the satisfaction of the 1st respondent, KSPCB. Certain vested interests had

spread lot of false information regarding the operations of the 2nd

respondent and the authorities in the presence of certain villagers had

conducted an inspection in an unscientific manner. The 2nd respondent had

immediately highlighted these facts and lack of proper inspection measures

by the junior officers to the Deputy Commissioner, Mandya. The applicants

and other persons agitating had forced the authorities to conduct the tests

without following the inspection measures, and the 2nd respondent had

protested against the manner the tests were undertaken and this was

clearly explained to the 1st respondent, KSPCB.

42. With regard to the allegations of discharging the effluent into

Hemavathi River, certain vested interests have planted false information

with regard discharge by the factory into the Hemavathi River and the 1st

respondent KSPCB had sought a clarification of the same from the 2nd

respondent on 27th December, 2012. The 2nd respondent had promptly

replied to the same on 1st January, 2013. The tests that were referred to by

the applicants were undertaken at a time when the 2nd respondent was

upgrading its effluent treatment plant and the plant was commissioned

shortly thereafter. The applicants have completely misrepresented the

notes of the visit of the Chairman of the 1st respondent KSPCB in which the

allegations made by certain persons during the inspection were recorded.

33

The applicants have sought to portray that the Chairman had recorded

findings of grave pollution by the 2nd respondent which is completely false

and misleading. The Chairman had visited the 2nd respondent’s factory on a

regular site visit and had discussed certain local apprehensions of the

project, which is evident from the letter dated 30.03.2013 of the 2nd

respondent to the Chairman of the 1st respondent, KSPCB.

43. The 2nd respondent has always operated its factory in accordance

with the highest standards in compliance with law. The applicants have

sought to highlight certain minor non-compliances of the 2nd respondent in

an attempt to misrepresent that the 2nd respondent is destroying the

environment and affecting the lives and livelihoods of the villagers. In fact,

the 2nd respondent enjoys the support of the local population and is the

source of livelihood for them as it provides employment, and a source for

their supplies, while also being a very active member in undertaking social

activities for the betterment of the local population.

44. The public hearing was conducted in accordance with all

requirements of law, and that the surrounding villages was informed about

the project and had in fact participated in the public hearing. The details of

the project were available with the local authorities and the office of the

panchayat. The allegation that the factory has caused illness amongst the

villagers is completely false and baseless and is denied in toto. The

applicants’ allegation of social and environmental change being caused by

the establishment of the distillery is false and baseless, as the 2nd

respondent has not set up the distillery or even applied for consent for the

same, and therefore there is no impact of the same as on date. The

applicants are seeking to raise the grounds against the EC granted by the

34

MoEF, which they have already challenged in Appeal 21 of 2013. The

reference in several parts of the application to the 2nd respondent herein as

the 3rd Respondent shows clearly that the applicants have merely repeated

all the grounds raised by them in Appeal No.21 of 2013 (which is filed

against the EC granted for the project wherein the industry is the 3rd

Respondent) in an attempt to drag the 2nd respondent into frivolous and

prolonged litigation. Therefore, the present application herein is a clear

abuse of process by the applicants who have already appealed against the

EC and related matters before this Tribunal in Appeal No.21 of 2013, and

the grounds raised therein are repeated in the present application and it is

evident that the applicants are seeking to raise grounds against the EC

granted by the MoEF which they have already challenged in Appeal 21 of

2013. The present application is filed to involve and draw the 2nd

respondent into wholly frivolous and vexatious litigation. Further, such an

application is an attempt to prolong the proceedings before the Tribunal

and thereby cause hardship the 2nd respondent’s project and also re-

litigate the issues and averments already made by the applicants in the

appeals before the Tribunal. Nevertheless, the 2nd respondent submits that

it enjoys the support of the local population and in fact several members of

the local population had also made representations to the 1st respondent

KSPCB in support of the project. The letters by the farmer organisation

referred to by the applicants only refer to apprehensions of pollution and

are not based on any information. The farmers’ organisations are actually

in support of the project and have represented their support to several

authorities.

45. The allegation made by the applicants that the surrounding villages

35

were unaware about the project is completely false, baseless and

misleading. Further, the public hearing was conducted in accordance with

all requirements for the same and branding the same as illegal is an

attempt by the applicants to make unsubstantiated claims and disguise

their attempts of causing nuisance to the 2nd Respondent. The 2nd

respondent had conducted a public hearing as part of the process based

on which the EC was granted by MoEF. The public hearing had in fact

been announced widely in the surrounding villages and had been attended

by persons from the surrounding villages. The proceedings of the public

hearing were recorded and the minutes of the same were provided to the

EAC along with the EIA Report. Several actions were undertaken to

address the concerns raised at the public hearing and trips were arranged

for the representatives of the local population to other similar industries so

that the explanations regarding safety and other issues, provided by the 2nd

respondent to the local population could be practically understood by the

local population. The reports along with the executive summary were

provided in the English and Kannada languages and they were placed at

the following locations for anyone to access:

i. Office of the Deputy Commissioner, Mandya District, Mandya,

Karnataka

ii. Office of the Chief Executive Officer, Zilla Panchayath, Mandya

District, Mandya, Karnataka

iii. Office of the Chief Executive Officer, Zilla Panchayath, Mandya

District, Mandya, Karnataka

iv. District Industry Centre, Mandya District, Mandya, Town

Municipal Council, Krishnarajapet

v. Village panchayat office of Makavalli Village

36

vi. Regional Office, Karnataka State Pollution Control Board,

Mandya

vii. Ministry of Environment and Forests, South Zone office, E-3/240,

Kendriya Sadana, 4th Floor, E&F Wings, 17th Main Road,

Koramangala, Bangalore – 5600034

viii. Help Desk, Karnataka State Pollution Control Board, Ground

Floor, No.49, Parisara Bhavan, Church Street, Bangalore - 560001

46. The applicants are attempting to misrepresent that the Hemavathi

River runs right next to the project, whereas the Hemavathi River is actually

at a distance of 2 km from the project and is permitted by the Karnataka

State regulations to be established at such a distance. Similarly, there are

no reserve forests within 10 km. The Krishnaraya Zone State Forest is

located around 3 km from the project is not a reserve forest, but is

classified as a social forestry.

47. The allegation made by the applicants that the surrounding

villages were unaware about the project is completely false and baseless.

All the concerns of the surrounding villages were voiced and addressed at

the public hearing. The fact is that the 2nd respondent had taken all steps in

accordance with law, conducted the public hearing for the project, and also

addressed all concerns of the local population including organising trips to

review the manner of operation of effluent treatment plants in other

industries using similar technology. The applicants have alleged that they

had made representations to several authorities in Karnataka, but the

project was still permitted. Hence, it is clear that the project was therefore

reviewed by the authorities and gave the clearance/consent for the project

after entire scrutiny.

37

48. The applicants have wrongly mentioned the date of the

correspondence from the 1st respondent KSPCB to the 2nd respondent as

13 March 2012, when the correspondence was actually issued on 13

March 2013. The 2nd respondent, after receiving the EC from the MoEF

made an application to the 1st respondent KSPCB in January 2013 for the

issuance of the CFE. The consent applied for was for the expansion of the

co-generation plant within the existing premises of the 2nd respondent’s

factory and therefore in anticipation of the consent, the 2nd respondent had

undertaken certain clearing activity on its premises, so that it could

commence the activities after the consent was granted by the 1st

respondent KSPCB. The 2nd respondent had promptly responded to the 1st

respondent KSPCB on 27 March 2013 highlighting that it was only

undertaking preparatory work and had also further stopped all such

preparatory activities until the consent was granted.

49. The 2nd respondent had made a detailed application to the

KSPCB for CFE. Further, the 2nd respondent had also followed the detailed

process, including conducting a public hearing which was attended by the

local population, leading upto the EC granted by the MoEF, Government of

India. Therefore, any allegation that the consents were granted in an

arbitrary and opaque manner are completely false and baseless. The

applicants are claiming that the 2nd respondent will cause grave pollution

in the future by highlighting correspondences with the authorities in a

selective manner and highlighting certain minor non-compliances of the

industry from several years before the consent was granted.

50. The allegation that the local population has raised its voice

against the project by the 2nd respondent is completely false and baseless.

38

In fact, the 2nd respondent is an integral part of the lives and livelihood of

the local population. The 2nd respondent provides employment for several

members of the surrounding villages, and also provides the source of

supply and sale for the produce by the local farmers. Similarly, the local

agriculturists collect certain waste produced from the factory as fertilizers.

In fact, several members of the local population have written to the

authorities highlighting their support for the project which would be

beneficial for them. The applicants have at the behest of certain vested

interests sought to claim they represent the entire local population and in

fact seeking to cause losses to the 2nd Respondent. Further, the

applicants have resorted to creating opposition to the project by spreading

false information and creating law and order problem in and around the

premises of the 2nd respondent, even though the project is overwhelmingly

supported by the surrounding population and the sugarcane farmers. The

notice issued on 15 June 2013 by the 1st respondent KSPCB did not follow

any principles of natural justice, and in fact had been issued solely due to

the pressure from the Applicants, while the 1st respondent KSPCB had

stated that the matter was pending before this Tribunal. Subsequently, the

1st respondent KSPCB referred the matter to its Technical Advisory

Committee to consider based on the concerns raised by the agitators. The

Technical Advisory Committee had considered all the concerns raised by

the local population with respect to the project in its review, and being a

technical committee it was not required to call the applicants to participate

in the proceedings. In fact, the local population had participated and voiced

their concerns during the public hearing process which was conducted by

the authorities when the EC was being considered. The information

regarding the meetings of the Technical Advisory Committee was available

39

to the public. The Technical Advisory Committee which reviewed the

consent given by KSPCB met several times between July to December

2013 and reviewed the project of the 2nd respondent. In fact, the Technical

Advisory Committee had raised several queries on the proposed expansion

of the Co-Generation Plant and its operations and the 2nd respondent had

made a detailed presentation on all the aspects and queries raised on 28

September 2013 to the satisfaction of the Technical Advisory Committee.

The Technical Advisory Committee had considered all the concerns raised

by the local population with respect to the project in its review, and being a

technical committee it was not required to call the applicants to participate

in the proceedings. In fact, the local population had participated and voiced

their concerns during the public hearing process which was conducted by

the authorities when the Environment clearance was being considered.

Hence, the allegation made by the applicants that the 2nd respondent

causes high degrees of pollution is denied as completely false and

baseless.

51. The applicants have misrepresented the details in their

application, which are not even accurate as per the materials provided by

them in the supporting annexure. The 1st respondent KSPCB had around in

the year 2007 prescribed that the industry should maintain a standard of

150 Mg/nm3 with respect to particulate matter with respect to emissions

and had recommended the use of the boilers and other equipments as per

these norms. In December 2013, the consent committee of the 1st

respondent KSPCB had further reduced this standard to 50 Mg/nm3, and

had recommended the new boilers and other equipment to meet the

requirements. The applicants have sought to apply the new standard that is

40

set out in the report of the consent committee of December 2013 and has

misrepresented that such standard was applicable to the industry since

2007. The 2nd respondent has always carried out its operations in

accordance with the requirements of the 1st respondent KSPCB. The

deviation from the standards as highlighted by the applicants was due few

instances of back feeding which resulted in spikes in the emissions for very

short durations. The 2nd respondent had in fact installed a wet scrubber as

part of its emission control system in 2008-09 and there has been no risk of

emissions since then. These aspects were explained and undertaken under

review of the 1st respondent KSPCB. The 2nd respondent proposed to

install a new boiler as part of the 4 fields ESP system to be established

along with the expansion in the co-generation plant, the plans of which

have also been reviewed by the 1st respondent KSPCB and thereby be well

below the emission standard of 50 mg/Nm3 as directed by the consent

committee in its report of December 2013. The recent tests in 2014 on the

emissions of the industry show that the industry is fully compliant of the

emission standards.

52. After receiving the EC from the MoEF, Government of India, it

had made an application to the 1st respondent KSPCB in January 2013 for

the issuance of the CFE. The consent applied for was for the expansion of

the co-generation plant within the existing premises of the 2nd respondent’s

factory and therefore in anticipation of the consent, the 2nd respondent had

undertaken certain clearing activity on its premises so that that it could

commence the activities after the consent was granted by the 1st

respondent KSPCB. This preparatory work was also stopped when the

KSPCB had advised the industry that approval should be required before

41

commencing any civil work, and all works were only commenced after the

consent was received form KSPCB. Subsequent to the grant of the consent

from KSPCB, the Stop Work Order had been issued by the 1st respondent

KSPCB after the applicants and other agitators had raised protests and this

is being challenged by the 2nd respondent before this Tribunal in Appeal

No.56 of 2013. The applicants have sought to make false and baseless

complaints before the police in an attempt to cause further nuisance to the

2nd respondent during the pendency of proceedings before this Tribunal.

The application is not maintainable by the applicants as they are seeking to

challenge consent granted by the KSPCB without following the proper

procedure or within the prescribed period. Further, the applicants cannot

challenge the report of the consent committee by way of the present

application.

53. The allegations of pollution and environmental damage that are

made by the Applicants are false and baseless since the project is being

established with the highest standards and leading technologies and is in

the interest of sustainable development and also the allegations of pollution

and environmental damage that are made by the applicants are only

speculative based on selective correspondence that have been produced

by the applicants. Certain vested interests had spread lot of false

information regarding the operations of the 2nd respondent and the

authorities in the presence of certain villagers had conducted an inspection

in an unscientific manner. The 2nd respondent had immediately highlighted

these facts and lack of proper inspection measures by the junior officers to

the Deputy Commissioner, Mandya. Based on lack of proper inspection

measures, the local authorities had recommended certain prohibitory

42

orders, but had considered the issues raised by the 2nd respondent. The

applicants and other agitators had agitated against at the offices of the

local authorities and had forced the inspection to be conducted in their

presence in an unscientific manner, thereby resulting in such orders being

recommended. The 2nd respondent had immediately voiced its protest as to

the manner in which the inspection was conducted, and had informed the

authorities of the same and based on the review of the events, the

authorities had not taken any action against the industry as alleged by the

applicants. With the adoption of new technologies which will be

implemented by the 2nd respondent there would be no possibility of any

pollution to Hemavathi River and the allegations made by the applicants in

this regard are based on misinformation and speculation.

54. The applicants are attempting to portray that the 2nd respondent is

setting up a power plant solely using coal, and has not realised that coal is

only permitted upto 15% as an auxiliary fuel along with bagasse. The very

object of the setting up of the co-generation plant is part of the strategy and

policy initiative of the Government of India to devise measures to increase

the economic prosperity of the sugar industry. The country is facing an

enormous challenge with regard to its power resources and bagasse based

generation is a non-conventional energy source. Utilising biomass is an

important strategy of the Government of India as both increasing power

generation capacity and ensuring environment-friendly practice are part of

this larger strategy as it acts as a substitute for conventional power

generation.

55. The Consent Committee had reviewed the consent granted by

KSPCB and the findings of the Technical Advisory Committee in detail,

43

which had also reviewed the project in detail. Therefore, any allegations

that the Consent Committee has not applied its mind are completely false

and baseless. Further, any allegations that the 2nd respondent has not

applied its mind are completely baseless. The applicants’ repeated

reference to the possibility of pollution by the 2nd respondent and the social

impacts of the project only goes to show that the applicants have no

grounds against the project and are only speculating about the industry and

its operations, and have no specific grounds against the project that have

been scrutinised and cleared by the authorities.

56. The Technical Advisory Committee had several meetings wherein

the 2nd respondent was required to make a presentation and respond to

several queries, along with technical information to the satisfaction of the

Technical Advisory Committee. The applicants are seeking to run a parallel

process to grant a consent for the project since the process established

and undertaken in accordance with the requirements of the law are

questioned in the application without any concrete information to the

contrary. Therefore, it is clearly an attempt by the applicants to merely stall

the project of the 2nd respondent at the behest of certain vested interests

and without any legitimate reason. While the applicants have stated in their

application that they do not have such information about the project and are

therefore questioning it, but in Para 50 they state that they have perused

the records and concluded that the entire process is a sham. These

allegations are completely baseless and are purely an exercise to frustrate

the proceedings before this Hon’ble Tribunal without providing any concrete

grounds.

44

57. The applicants have made sweeping statement without any basis

by contending that the fly-ash notification was disregarded which is

completely baseless as the proposed project at the project location is

clearly required to be carried out in accordance with the fly-ash utilisation

norms and has also to install real time stack monitoring for the same. The

2nd respondent has been carrying on its existing operations in the industry

in accordance with the requirements of the fly-ash utilisation norms. In fact,

the Technical Advisory Committee had specifically reviewed the issues

relating to the fly-ash utilisation during the review process and had provided

its recommendations only after being satisfied with the compliance by the

2nd respondent. The applicants have alleged that the water sources

available to the 2nd respondent are only in regard to the sugar industry. The

2nd respondent has entered into an agreement with the Government of

Karnataka wherein permission was given to draw water from the

Hemavathi river since all the operations are at the project location. In any

event, the 2nd respondent is establishing processes and technologies at the

project location for using with recycled water with the new treatment plant

and thereby reducing the drawal of water from the river. An independent

agency has recently conducted a test of the water that is recycled from the

new treatment plant and the report of the same has held that it meets the

irrigation standards for use.

58. Finally, the 2nd respondent would conclude in his reply that the

project being established by the 2nd respondent does not violate any

applicable laws or rights of individuals as alleged by the applicants. The

Courts in India have always upheld the Principle of Sustainable

Development and the applicants have misinterpreted the same. The use of

45

coal in the project has been reviewed by the authorities and in fact the

answering Respondent had even provided details of the supply of coal for

the project which was reviewed as part of the clearances and approvals

granted. Further, various technologies being implemented by the 2nd

respondent would reduce any risk due to pollution and therefore the

allegations made by the applicants are based on misinformation.

59. As seen above, the appellants have filed Appeal No. 21 of 2013

(SZ) seeking to quash an EC dated 31.12.2012 granted by the 1st

respondent, MoEF in favour of the 3rd respondent, M/s. Coromandel Sugars

Ltd. for construction of a distillery, co-generation plant and CPP while they

have filed Application No. 152 of 2014 (SZ) to quash an order of consent

for establishment for the expansion project of the co-generation plant etc.

granted by the KSPCB in favour M/s. Coromandel Sugars Ltd. Aggrieved

over the stop work order issued by the KSPCB, M/s. Coromandel Sugars

Ltd., has preferred Appeal No. 56 of 2013 (SZ) to set aside the same.

Since all the above proceedings are related to the same project and the

parties are also same, all the matters were clubbed together for a joint

enquiry.

60. For the sake of convenience, the parties to the proceedings are

being referred to as per their position in Appeal No. 21 of 2013 (SZ).

61. All the above proceedings have arisen under the following factual

scenario:

62. M/s. Coromandel Sugars Ltd. shown as the 3rd respondent was

set up and commenced its operations at the present location in the year

1999 with the approval of the concerned authorities. An agreement was

entered into between the 3rd respondent and the State of Karnataka

46

pursuant to which approval was accorded by the State Government to draw

water from Hemavathi river located near the 3rd respondent industry as

could be seen in page No.255 of Volume II filed by the 3rd respondent. The

3rd respondent made an application to the 1st respondent, MoEF for the

proposed molasses/grain based distillery (45 KLD), co-generation plant (30

MW) and CPP (1.5 MW) at the project location. The 1st respondent, MoEF

issued ToR on 21.03.2011 to the 3rd respondent. A public hearing was

conducted on 09.12.2011 with regard to the expansion of the project within

the premises of the 3rd respondent’s sugar factory where the distillery, co-

generation plant and CPP were proposed. The public hearing was attended

by all the appellants. The 3rd respondent organized visits for the

representatives of the villagers to other nearby industries to witness the

technologies and to know the processes that were proposed at the project

location. Following the recommendations of the EAC, the 1st respondent,

MoEF granted the EC on 31.12.2012 for the proposed project. On an

application made by the 3rd respondent industry, the KSPCB issued the

CFE on 24.04.2013. Challenging the said order, the Appeal No. 21 of 2013

(SZ) was filed on 26.05.2013 before the Tribunal along with an application

to condone the delay that occasioned in preferring the appeal.

63. In view of the protests, the KSPCB issued a letter to the

Karnataka Rajya Raitha Sanga informing them that their agitation against

the project could not be addressed in view of the pendency of the appeal

against the EC before the NGT. However, due to the agitation and protests,

the KSPCB issued a stop work order on 15.06.2013 to stop all the works on

the project. A representation was made by a group of farmers to KSPCB

that the stop work order issued to the 3rd respondent industry was against

their interest. A communication was addressed by the 3rd respondent

47

industry on 17.06.2013 to KSPCB informing that the construction works

were at crucial stage and there were no operation which required coal to be

used. But, there was no response from KSPCB. Under the circumstances,

the 3rd respondent approached the Tribunal seeking a direction to KSPCB

to withdraw the stop work order and for that purpose the Appeal No. 56 of

2013 (SZ) was filed. Pursuant an interim order of stay on the stop work

order, the 3rd respondent was continuing its construction works. The subject

was discussed by the Technical Advisory Committee of the KSPCB on

24.07.2013 and consequent upon the discussions held, further information

about the project was called for. Again the Technical Advisory Committee

of the KSPCB reviewed the matter in detail and held that the usage of coal

as an auxiliary fuel was a settled issue in respect of the co-generation plant

in sugar factories where its requirement was upheld. On 05.12.2013, the

Consent Committee of the KSPCB reviewed the system and conditions

applicable to the project of the 3rd respondent and recommended that the

usage of 15% coal could be permitted as an auxiliary fuel along with

bagasse and also with certain other additional safeguards to be maintained

by the industry when the project is commenced. The KSPCB issued a

report dated 10.12.2013 on the findings of the Consent Committee on the

issue of usage of coal as an auxiliary fuel and filed the report in this regard.

Application No. 152 of 2014 (SZ):

64. The following questions emerge for consideration and

determination by the Tribunal in Application No. 152 of 2014 (SZ):

1. Whether the application is not maintainable since it is barred by time and

also on the ground of lack of jurisdiction.

48

2. Whether the CFE for expansion of the project in question granted by the

KSPCB in favour of the 3rd respondent industry is liable to the quashed in

view of all or any of the reasons putforth by the applicants.

3. To what relief the applicants are entitled to?

65. At the outset, the learned counsel for the respondent industry

questioned the maintainability of the application on the ground that it is

barred by time as prescribed under the NGT Act, 2010 and on the ground of

jurisdiction also the applicants by preferring this application before NGT

have not made the application in proper form and hence on those grounds

the application has got to be dismissed. It was contended that the

Application No. 152 of 2014 (SZ) cannot be maintained as the applicants

have not filed this application in accordance with the requirement of law.

Section 31 of the Air Act and section 28 of the Water Act provide that any

person aggrieved by the order of the State Pollution Control Board may

prefer an appeal before the Appellate Authority of the State Pollution

Control within 30 days from the date of the order. The NGT Act, 2010

provides that any aggrieved person may approach the NGT to challenge an

order of the Appellate Authority of the State Pollution Control Board. The

applicants, by their own admission in their application acknowledged that

the appropriate forum to challenge the impugned consent was the Appellate

Authority in Karnataka. But, they have not preferred any appeal before the

Appellate Authority and instead directly approached the Tribunal seeking to

quash the CFE of the KSPCB on frivolous grounds that the applicants were

waiting for the Appellate Authority in Karnataka to be constituted to prefer

such an appeal. Since the consent of the KSPCB was granted on

24.04.2013, the applicants have not filed an appeal before the Appellate

49

Authority and are now attempting to maintain the present application before

the Tribunal and thus, the applicants cannot maintain this application before

the Tribunal.

66. In answer to the above, it is contended by the learned counsel for

the applicants that the applicants could not prefer an appeal before the

Appellate Authority of the KSPCB since the same was not constituted and

have waited for some time, they made the application before the Tribunal to

set aside the impugned consent.

67. Admittedly, the applicants have challenged the CFE issued by the

KSPCB to the 3rd respondent industry under section 21 of the Air Act and

section 25 of the Water Act dated 24.04.2013 as could be seen from the

Annexure- A1 filed by the applicants. They have also challenged the

subsequent decision taken by the Consent Committee of the KSPCB dated

05.12.2013 placed as Annexure- A 24 and the report of the KSPCB dated

10.12.2013 placed as Annexure- A 25. Thus, in the same Application No.

152 of 2014 9SZ), they have challenged the CFE dated 24.04.2013 and the

decision of the KSPCB dated 05.12.2013 and 10.12.2013 shown under

Annexure- A 24 and A 25, respectively. Any person aggrieved by the order

of the State Pollution Control Board can prefer an appeal before the

Appellate Authority of the State Pollution Control Board that too with the

prescribed period of 30 days from the date of order. Section 31 of the Air

Act reads as follows:

“31. Appeals.- (1) Any person aggrieved by an

order made by the State Board under this Act may,

within thirty days from the date on which the order

is communicated to him, prefer an appeal to such

authority (hereinafter referred to as the Appellate

Authority as the State Government may think fit to

constitute:

50

Provided that the Appellate Authority may

entertain the appeal after the said period of thirty

days if such authority is satisfied that the appellant

was prevented by sufficient cause from filing the

appeal in time.”

Section 28 of the Water Act reads as follows:

“28. Appeals.- (1) Any person aggrieved by an order

made by the State Board under section 25, section

26 or section 27 may, within thirty days from the

date on which the order is communicated to him,

prefer an appeal to such authority (hereinafter

referred to as the Appellate Authority as the State

Government may think fit to constitute:

Provided that the Appellate Authority may

entertain the appeal after the said period of thirty

days if such authority is satisfied that the appellant

was prevented by sufficient cause from filing the

appeal in time.”

68. It is well admitted by the applicants that the appropriate forum to

challenge the said consent was the Appellate Authority, KSPCB. But, since

the same was defunct and not constituted, the applicants made an

application challenging the CFE granted to the 3rd respondent by KSPCB

before the Tribunal. In the considered opinion of the Tribunal, the reason

adduced by the applicants cannot be accepted for more reasons than one.

The impugned consent was granted by the KSPCB to the 3rd respondent

industry on 24.04.2013. An appeal should have been preferred therefrom

only before the Appellate Authority, Karnataka State Pollution Control as

provided under the provisions of the Water Act and Air Act as stated above

and not directly before the Tribunal. The provisions under the NGT Act,

2010 clearly envisage only for preferring an appeal before the NGT within

the stipulated time of 30 days from the order/judgment of the Appellate

Authority and not from the KSPCB. Thus, if permitted, it would amount to

allowing bypassing the statutory remedy available under law which cannot

51

be done. There is nothing available on record to indicate that the Appellate

Authority of KSPCB was not functional during the relevant period and was

not constituted for a longer period of one year. Thus, the applicants cannot

maintain the application before the Tribunal. On the question of limitation

also, the Tribunal has to necessarily agree with the respondent’s plea.

Having failed to prefer the appeal under Water Act and Air Act before the

Appellate Authority of KSPCB, the applicants have chosen to prefer the

appeal by making an application before this Tribunal that too after a lapse

of one year which is very much beyond the period of limitation. The counsel

for the applicants has no valid explanation to offer on the question of

limitation and that on both the grounds, the Application No. 152 of 2014

(SZ) has got to be dismissed. Accordingly, the Application No. 152 of 2014

(SZ) is dismissed. No cost.

Appeal No. 21 of 2013 (SZ):

69. The following points emerge for consideration and decision of the

Tribunal in Appeal No. 21 of 2013 (SZ):

1. Whether the Public Hearing process undertaken by the KSPCB is in

violation of EIA Notification, 2006.

2. Whether the EC is vitiated on the ground that the EIA was conducted by

an agency not having accreditation and competence.

3. Whether there was any deviation from the siting guidelines prescribed by

the KSPCB.

4. Whether the EC is liable to be set aside on the grounds of suppression of

material fact by the project proponent and non application of mind on the

52

part of the EAC for recommending the grant of EC to the 3rd respondent as

alleged by the appellants.

Point No: 1. Whether the public hearing process undertaken by the

KSPCB is in vilation of the E.I.A. Notification, 2006.

70. Levelling criticism on the public hearing and public consultation

process as violative of the EIA Notification, 2006, the learned counsel for

the appellant would submit that the EAC recommendation and consequent

EC granted for the expansion project in question have to be set aside. All

affected villages and panchayats were not provided with information in

regard to the public hearing on the proposed project. There are 35 villages

and 5 gram panchayats and a bigger town Krishnarajpet situate within a

radius of 10 km from the proposed site and all the villages and towns were

not made aware of the public hearing nor was any copy of the EIA report

furnished to the citizens. Even assuming without admitting the details of the

socio-economic study of the EIA report, the 8 villages mentioned in the

Table were from 3 different panchayats. The project proponents themselves

have admitted that there were 20 villages from different panchayats that fall

within a radius of 10 km from the proposed site. Despite the same, none of

the other panchayats was provided with any information on the public

hearing regarding the project. It is pertinent to point out that there were

widespread objections to the project from other affected villages which

cannot be brushed aside and the same is evidenced from resolutions and

representations passed by the Gram Panchayats which fall within a radius

of 10 km. Moreover, the resolution passed by those Gram Panchayats were

not considered. Apart from the above, the information was not provided with

adequate time. Even the villagers of Makavalli village became aware of the

said Public Hearing only a few days before the same in contravention of the

53

EIA Notification, 2006. The persons were not informed that the same was a

Public Hearing which was an opportunity to raise objections but merely as a

meeting they were to attend. Further, even during the meeting the 4th

respondent, Deputy Commissioner, informed them that it was not a final

meeting and a subsequent meeting will be held to take a decision in regard

to the proposed project. The EIA Report was not provided in local language

and only the Executive Summary was provided in Kannada language in

violation of the EIA Notification, 2006. None of the objections raised at the

public hearing was also considered which is evidenced from the action

taken report and those objections were merely brushed aside. Though,

written objections were listed, no response to the same have been

provided. The minutes of the Public Hearing have not been prepared in

accordance with the law and instead were drafted in the confines of the

office of the Deputy Commissioner contrary to section 6.4 of Appendix IV of

the EIA Notification, 2006. Thus, the entire public hearing proceedings is

vitiated in view of the violation of mandatory provisions as envisaged under

EIA Notification, 2006 and on that ground itself the impugned EC has to be

quashed.

71. Answering to the above contentions, the leaned counsel for the 3rd

respondent industry would submit that all surrounding villages and the

concerned gram panchyats were notified of the Public Hearing and several

announcements of the same were made by concerned authorities. The

appellants have attempted to portray that the public hearing was carried out

in a clandestine manner when they belonged to the villages which were

clearly notified of the public hearing. Therefore, it is not clear as to on what

basis the allegations are being made by the appellants. The allegation that

the copy of the EIA report was not available to the public is completely false

54

and baseless. The draft EIA Report alongwith the summary both in English

and Kannada were provided at the local offices of the concerned authorities

and the appellants have also received the copy of the draft report which has

been filed and relied on by the appellants before the Tribunal.

Though the concerned authorities have given necessary information

regarding the expansion project to all panchayats, the appellants have

sought to point to the resolutions passed by certain members of the Gram

Panchayats. While, the 3rd respondent industry, had complied with all the

requirements for holding the public hearing including the time period

prescribed, it is not correct to say that the villages were made aware of the

public hearing only a few days before. The Executive Summary of the EIA

Report was provided both in English and Kannada languages and the

allegations are false. The objections raised during public hearing were well

considered and addressed also. In fact, the 3rd respondent conducted a tour

for the villagers to a neighbouring sugar industry to review the latest ETP

and other technologies proposed to be implemented by the 3rd respondent

and all the villagers were satisfied after the personal review and inspection.

The minutes prepared at the time of public hearing was in accordance with

the law and hence allegations against the public hearing for the proposed

project of the 3rd respondent has no basis either in law or on fact and hence

they are to be rejected.

72. It is not in controversy that the public hearing was conducted at

the premises of the 3rd respondent industry in respect of the proposed

expansion project on 09.12.2011. The proceedings of the public hearing

held on 09.12.2011 is filed as Annexure-A 12. A perusal of the same would

indicate that sufficient opportunity was given to the public to voice their

concern and grievance. The factory management has also replied to the

55

public appeal. The very reading of the proceedings of the public hearing

would indicate that it was conducted in a fair and free manner. It is

submitted by the learned counsel for the respondent KSPCB that as per the

guidelines, the announcement for the public hearing was given in both

English and Kannada newspapers. The general public have also

participated and voiced their grievances. It is pertinent to point out that the

appellants have also participated in the public hearing. There is nothing to

indicate that the public were made aware of the public hearing only before

the same. It is also pertinent to point out that at the time of public hearing,

the Member of the Legislative Assembly (MLA), Krishnarajpet Taluk,

Mandya District was present apart from all the officials and 117 villagers

from different villages. The letters written by the public were also taken into

consideration and discussions were also held. In view of the above, there is

nothing to hold that any violation of EIA Notification, 2006 was committed in

conducting the public hearing.

73. Concededly, following the public notice in the leading newspapers

and circulating draft EIA, a public hearing was held on 09.12.2011 at the

project site as required by the EIA Notification, 2006. Perusal of the

proceedings documented would indicate that a large number of persons

from different villages including the MLA of Krishnarajpet were present. All

those were given sufficient opportunity to raise their objections and

concerns which were recorded in the minutes of the meeting. It is not the

case of the appellants that public notice was not given nor the persons

assembled were denied the opportunity. It is pertinent to point out that

nothing is available or brought to the notice of the Tribunal that the

residents of some of the villages whose names were omitted in the EIA did

not participate. It is candidly admitted by the appellants that they were

56

present at the public hearing and all letters and representations received

from different quarters were also read out. Paragraph 6 of section 3 of EIA

Notification, 2006 dealing with the ‘public consultation’ requires a consent

from Pollution Control Board to invite response from the concerned

persons on the website and the summary of the EIA report in the format in

Appendix –III A. It does not require EIA report in local language. But, it

requires only a summary of the public hearing proceedings. According to

the KSPCB, the procedure was strictly followed. One of the grounds on

which the EC is sought to be set aside is that the public hearing was not

conducted properly as required in the EIA Notification, 2006. The Tribunal is

of the considered opinion that even assuming that there was a lapse in the

public hearing, it would not be proper to declare the same as invalid or

illegal unless the appellants are able to show that the objections and

concerns raised by the people during the public hearing were either not

reflected in the proceedings recorded and some prejudice has been

caused. The validity or otherwise of the public hearing depends always

upon the facts and circumstances of each case. If there was a gross

violation of the procedure, the Tribunal may not have any hesitation to

declare the same as invalid. But in the instant case, it is quite evident that a

large number of persons were present who have been given opportunity to

raise objections and concerns as reflected in the minutes of the

proceedings recorded and thus it would be quite clear that no prejudice was

caused. Hence, the contention putforth by the appellants’ side that the

public hearing was not conducted as contemplated under the EIA

Notification, 2006 is without force and has to be rejected. Accordingly, this

point is answered in favour of the 3rd respondent.

57

Point No. 2: Whether the EC is vitiated on the ground that the EIA was

conducted by an agency without accreditation and competence.

74. Submitting the arguments on the above question, the learned

counsel for the appellants would submit that the proposed project is a

Category-A project. But, M/s. Enviro Care India Pvt., Ltd. (ECIPL) who

conducted the EIA was not competent to take up the Category-A projects.

Relying on the documentary evidences, the learned counsel pointed out

that the meteorological data have been collected by ECIPL for the period

January, 2008 to December, 2010. The field study report was prepared by

the very same agency, namely, ECIPL which made the study for Aranmula

airport from July, 2010 to October, 2010 which was submitted in October,

2010. The EAC prescribed ToR for preparation of EAC and Environment

Management Plan (EMP) on 03.03.2011 and 04.03.2011. Accordingly, the

baseline data was monitored by ECIPL between April, 2011 and June,

2011. The Accreditation Committee meeting rejected the application of

ECPIL on 23.08.2011. The application for accreditation submitted by ECPIL

was rejected by Quality Control of India (QCI) on 30.09.2011. The public

hearing conducted at Makavalli village in Mandya District on 09.12.2011

where the records reflect the participation of ECPIL. The EC granted to the

Aranamula airport project was on the basis of the EIA report prepared by

the same consultant. The EC for the said airport project granted on

16.08.2012 was set aside by the Tribunal on 28.05.2014 inter alia on the

ground of incompetency of the ECIPL. The EC for the present project in

question was granted on 31.12.2012. The application for accreditation

submitted by ECPIL was rejected by an order dated 23.08.2011 by the

Accreditation Committee and on 30.09.2011 the Office Memorandum of the

MoEF indicated that the application for accreditation submitted by ECIPL

58

was rejected by the QCI. Hence, ECIPL was not accredited to act as a

consultant to any project whatsoever. It is pertinent to note that the rejection

of ECIPL took place prior to the conduct of the public hearing on

09.12.2011, thereby clearly evidencing that despite being aware of said

rejection, the report prepared by an incompetent agency was relied upon.

The Office Memorandum dated 18.03.2010 categorically stated that no final

EIA/EMP from any project proponent prepared by a non-accredited

consultant would be entertained after 1st July, 2010 and it is also made

clear that a consultant would be confined in the consultancy only to the

accredited sectors and parameters for bringing in more specificity in the EIA

document. The 3rd respondent in its reply has admitted that the EIA report

was prepared by ECIPL and was thereafter changed to M/s. Team Labs

Ltd., (TLL) since ECIPL was not accredited. It is an admitted position that

the EIA was prepared by ECIPL and TLL had no role whatsoever to play in

the same. The minutes of the public hearing would also show that it was

ECIPL participated in the public hearing as a consultant. But, it is

contended by the respondent industry that TLL participated in the public

hearing and not the ECIPL. But, the said contention is contrary to the

proceedings of the public hearing which clearly reflects ECIPL as consultant

while TLL was not mentioned at all. Though it is contended by the 3rd

respondent industry that the TLL has conducted and verified the data, no

material was placed in this regard by the 3rd respondent. It is pertinent to

point out that the baseline data was collected by ECIPL and analysis was

also conducted by the same consultant which is not disputed. No material

has been placed to show any verification or application of mind by TLL. The

draft EIA and final EIA are identical. The ECIPL did not have the

accreditation even at this juncture. In such circumstances, with the same

59

consultant this Tribunal has held that the report prepared by an

unaccredited agency could not be relied upon. It is not correct to state the

Office Memorandum dated 17.03.2010 permits the change of a consultant

during the entire process including during appraisal stage. The same is an

improper reading of the said Office Memorandum which only specks of

information to be provided regarding change of consultant. Apart from that,

the same in no way changes the mandatory position that the consultant

who prepares the EIA report should be accredited. It is pertinent to note that

it was only at the stage of presentation before the EAC that TLL had come

into the picture. From the draft EIA report, it is clear that the EPICL

collected all the data and the summary of the EIA which was placed at the

time of public hearing. Thus, the EIA report was prepared by an accredited

agency and TLL merely lent their name to the report submitted to the EAC.

The MoEF has taken a stand that EPICL was not the consultant and only

TLL was the consultant which is contrary to the stand of the industry and

this would clearly confirm that the entire process of the EIA report was done

without approval of MoEF. Thus, the said process was in violation of the

Office Memorandum dated 17.03.2010 of the MoEF. In order to

substantiate his contentions, the learned counsel relied on the judgement of

this Bench of the NGT made in K.P. Sreeranganathan vs. Union of India

and others in Appeal Nos. 172-174 of 2013 (SZ) and Appeal Nos. 1 and 19

of 2014 (SZ).

75. It is pertinent to point out that the said judgment was upheld by

the Hon’ble Apex Court of India in Civil Appeal Nos. 6594-6598 of 2014.

The procedure provided in the EIA Notification, 2006 is mandatory in

nature. In regard to the mandatory nature of the procedure prescribed

therein, it is pertinent to note that the order of the Hon’ble Principal Bench

60

of NGT in Sarpanch, Gram Panchayat, Tiroda Vs. MoEF (Order dated

12.09.2011 in Appeal No. 3 of 2011). Thus, it is clear that only an

accredited agency could prepare the EIA report. From the materials

available, it is quite clear that an unaccredited agency has prepared the

report which is completely unreliable. Thus the EC granted to the project

proponent is liable to be set aside on the ground that the EIA report which

formed the basis for the grant of EC was prepared by an unaccredited and

unqualified agency.

76. Strongly refuting the above contentions made by the appellants’

side the learned counsel for the 3rd respondent industry would submit that

all the allegations questioning the competency of the EIA consultant were

baseless and unfounded. It is based on the review of the draft EIA report

which was produced by the appellants. In fact, the final EIA report along

with all the annexures and other information sought by EIA addressed

several points which were alleged by the appellants as missing. He took the

Tribunal to the final EIA report along with Annexure- A2. The 3rd respondent

industry had engaged the ECIPL as a consultant for the project in the year

2010 and the consultant had assisted the 3rd respondent with collection of

data and preparation of the draft report. But, during the period, it was

noticed that ECIPL was not qualified to act as a consultant and hence, the

3rd respondent had promptly replaced the consultant with an accredited

consultant TLL. It is pertinent to note that the ECIPL was allowed to

appraise and prepare projects as it was accredited by QCI and NABET and

the ECIPL was not eligible to appear for presentation with effect from

01.10.2011 as per the Office Memorandum dated 30.09.2011 issued by the

MoEF. The draft EIA report for the project was prepared in August, 2011

when the consultant engaged was eligible to appraise and be involved in

61

the project. Thereafter, all the information presented by ECIPL prior to

30.09.2011 was immediately handed over to TLL who was tasked with the

complete verification of all the information. The contention raised by the

appellants that ECIPL had participated in the public hearing on 09.12.2011

at the time when it was an incompetent agency is false since the presence

of representatives of TLL was recorded at the public hearing meeting

conducted on 09.12.2011. Thus, the public hearing was attended by an

accredited agency. The attendance records of the public hearing minuted

by concerned authorities would vouchsafe the facts stated by the 3rd

respondent industry.

77. The appellants have relied on the Office Memorandum dated

17.03.2010 which required the Project Proponents to notify the changes in

regard to the consultants during the appraisal process to the 1st respondent,

MoEF in order to claim that the 3rd respondent had not followed the required

procedure. The accredited consultant TLL was engaged to appear before

the EAC prior to the commencement of appraisal process. Thus, TLL had

been involved during the appraisal process and therefore, the requirements

of the Notification under the Office Memorandum dated 17.03.2010 of the

1st respondent, MoEF were not applicable. In fact, the minutes of the EAC

meeting held in 9/2012 record that the TLL had made detailed presentation

regarding the project of the 3rd respondent before the EAC. The appellants

relied on the fact that the draft EIA report had a mention of ECIPL to make

out a case that the EIA report and the appraisal process were flawed and

prepared by an unqualified agency. But, the final EIA report was verified

and submitted by TLL along with several additional information sought by

the EAC. The appraisal process before the EAC was attended by TLL. It is

pertinent to note that the data collected by ECIPL were used by TLL in the

62

final EIA report only after verification. Therefore, the judgement dated

28.05.2014 of this Tribunal in K.P. Sreeranganathan vs. Union of India and

others in Appeal Nos. 172-174 of 2013 (SZ) and Appeal Nos. 1 and 19 of

2014 (SZ) with respect to incompetence of ECIPL was not applicable to the

present case where an accredited agency TLL had prepared the final EIA

report and conducted the appraisal process leading upto the receipt of EC

from the 1st respondent, MoEF. Therefore, all the allegations of the

appellants do not hold up in the light of scrutiny and hence, they are to be

rejected.

78. Admittedly, the proposed project, namely, the establishment of

mol sasses/grain based distillery (45KLD), a co-generation plant (from 12

MW to 30 MW) and CPP (1.5 MW) at Makavalli village, Krishnarajpet

Tehsil, Mandya District, Karnataka is a Category-A project. One of the main

contentions of the appellants is that ECIPL had conducted the EIA even

though it was not competent to take up Category-A projects. On the

contrary, it is the case of the 3rd respondent, industry that on coming to

know that the ECIPL was not qualified and competent, the said agency was

promptly replaced by another competent accredited consultant, namely,

TLL and hence the allegation made on the competency of the consultant is

unfounded. It is not in controversy that the 3rd respondent originally

engaged ECIPL as the consultant for the impugned expansion project in the

year 2010 who had collected the data from January, 2008 to December,

2010. Pointing to the judgement made by this Bench of the NGT in K.P.

Sreeranganathan vs. Union of India and others in Appeal Nos. 172-174 of

2013 (SZ) and Appeal Nos. 1 and 19 of 2014 (SZ), it is contended by the

appellants’ side that the EIA report was submitted in the Aranmulla airport

by the same ECIPL in October, 2010 who was thoroughly unaccredited and

63

declaring its incompetency, this Tribunal had held that the report should not

have been acted upon for granting EC and was found as one of the reasons

to scrap the EC and hence, the findings of this Tribunal has to be applied in

the instant case also. On the contrary, it is submitted by the learned counsel

for the 3rd respondent industry that the finding of this Tribunal in the

aforesaid case has no application in the present factual position. Neither the

ECIPL who collected the data originally and prepared the draft report nor

the TLL who is admittedly an accredited and competent agency and who

prepared the final EIA has been impleaded as party to these proceedings.

The 3rd respondent industry has not disputed that the collection of data

originally and preparation of the draft report was by ECIPL whose

application was rejected by the Accreditation Committee in the meeting held

on 23.08.2011. As rightly pointed out by the learned counsel for the 3rd

respondent industry the ECIPL was allowed to appraise and prepare the

project as it was accredited by QCI and NABET and was not competent and

eligible for presentation with effect from 01.11.2011 as per the Office

Memorandum dated 30.09.2011 issued by the 1st respondent, MoEF. By

calling ECIPL as non-accredited agency and thus incompetent and also

relying on the Office Memorandum of MoEF dated 17.03.2010 which reads

as follows, the counsel for the appellants contend that the process is

vitiated:

“No final EIA/EMP from any project proponent

prepared by the non-accredited consultant will be

entertained after 1st July, 2010”.

From the very reading of the above Office Memorandum it is clear that a

final EIA/EMP from a project proponent prepared by a non-accredited

consultant would not be entertained after 1st July, 2010. In the instant case,

64

the public hearing was conducted on 09.12.2011. On coming to know that

the ECIPL was not qualified and competent to act as a consultant for the

impugned project, the same was replaced by TLL who is a competent

consultant. Though collection of data and preparation of draft report were

made by ECIPL, the entire task was handed over to TLL. It is true that the

minutes of the public hearing would indicate that the presence of ECIPL.

But, it was a stage prior to the appraisal by EAC. There is nothing to

indicate that in the preparation of final report the ECIPL had participated.

On the contrary, the final EIA report was submitted before the EAC only by

TLL. It is significant to note that the final report submitted before the EAC

had several annexures as additional information as required by EAC.

Without the collection of additional data and addressing the objections

raised, additional information could not have been placed by TLL before the

EAC when the said agency filed the final report. Significant it is to note that

it was TLL who participated during the appraisal before EAC for the

impugned project. Thus, it would be quite evident that during the period

when ECIPL collected the data and prepared the draft report there was no

legal impediment for the same and it was TLL a competent and accredited

agency who on verification of the entire data and draft report of ECIPL,

prepared the final report along with additional information and participated

in the appraisal process before EAC. In view of the above circumstances,

the Tribunal is of the considered view that the earlier judgement of this

Bench made in K.P. Sreeranganathan vs. Union of India and others in

Appeal Nos. 172-174 of 2013 (SZ) and Appeal Nos. 1 and 19 of 2014 (SZ),

K.P. Sreeranganathan vs. Union of India and others in Appeal Nos. 172-

174 of 2013 (SZ) and Appeal Nos. 1 and 19 of 2014 (SZ) cannot be applied

since in that case right from the stage of collection of data till the

65

submission of the final report, ECIPL who was thoroughly incompetent in

view of non-accreditation was involved but not so in the instant case as

stated above. For the reasons stated above, the Tribunal cannot subscribe

to the case of the appellants that the EC is vitiated since EIA was

conducted by an agency without accreditation. No procedural flaw in

violation of EIA Notification, 2006 or the aforesaid Office Memorandum

dated 18.03.2010 of the 1st respondent, MoEF is noticed. Hence, this point

is answered in favour of the 3rd respondent industry.

Point No. 3: Whether the proposed project is violative of siting

guidelines of the KSPCB:

79. Yet another ground raised by the appellants was in respect of siting

guidelines that the impugned project stood against the siting guidelines of

KSPCB. The learned counsel for the appellants would submit that the siting

guidelines of KSPCB were mandatory in nature. The establishment of the

proposed industry was contrary to the said siting guidelines applicable to

the distilleries. The Hemavathi river is less than 1.5 km from the industry. A

reply obtained through the Right to Information Act (RTI Act) from the

KSPCB stated that the distance between the factory and the river was

between 1.2 km and 1.6 km as crow flies as found in Annexure-A 24. The

Cauvery Neeravari Nigam Ltd., (CNNL), a state undertaking placed with the

responsibility of overseeing the River Cauvery and its tributaries including

Hemavathi river has stated that the distance from the river is 1240 m, i.e.

1.24 km only. But, the respondents including the project proponent have

controverted the mandatory nature of the siting guidelines. They have not

disputed the existence of the River Hemavathi in the vicinity of the

proposed project. They only disputed its distance from the proposed

project. The project proponent has stated that the River Hemavathi is at a

66

distance of 2.2 km from the project location. For this purpose the 3rd

respondent relied upon a topography map. But, no details regarding the

distance from the river and the proposed project are found in the said

topography map filed in the Annexure- A 22. It is clear from the same that

the alleged distance that has been marked is not part of the topo map, but

in fact super imposed on the same and is a mere self certification of the

project proponent which should not be relied upon. The project proponent

has not disputed either the information provided by the KSPCB or the

CNNL. The 1st respondent, MoEF is silent on the distance aspect. Hence, it

has to be taken as admission. In its reply, the KSPCB has stated that the

River Hemavathi flows at a distance of 2 km from the proposed project

which is thoroughly contrary to the reply by KSPCB itself. Thus, it would be

quite clear that the KSPCB has made a misrepresentation to the Tribunal to

the benefit of the project proponent. Hence, in view of the siting guidelines,

the proposal of the proposed project ought to have been rejected. On that

ground alone the proposed project suffers infirmity and hence the

clearances have to be set aside.

80. Contrary to the above, it was submitted by the learned counsel for

the 3rd respondent that the industry was set up and commenced its

operation in the present location in the year 1999 with the approvals of the

concerned authorities. The contention of the appellants that the proposed

project was in violation of the siting guidelines was completely false and

baseless. Despite the fact that the premises of the 3rd respondent was used

for operations well before the siting guidelines, the fact is that the 3rd

respondent is in compliance of the siting guidelines of the KSPCB even as

on date. By alleging that the project is less than 1.5 km from Hemavathi

river, the appellants are misinforming the Tribunal by providing inaccurate

67

information. They have sought to rely on the non-existent and ambiguous

documents in their arguments. Though accurate information regarding the

distance criteria was very well available with the appellants they have

wilfully suppressed the same. The report of the 2nd respondent submitted

by the appellants shows that the Hemavathi river flows at a distance of 2

km from the project location as could be seen in Annexure- A 30 filed by

the appellants. Actually, the Hemavathi river is located at a distance of 2.2

km from the project location which is clearly evident from the topo map of

Makavalli village prepared by the authorities of Karanataka as found in

Annexure – A 22. It is pertinent to note that the 3rd respondent is to adopt a

new technology at the proposed distillery and the expansion project to

ensure Zero Liquid Discharge (ZLD). Therefore, there would be no impact

on the ground and surface waters by the operations of the proposed

projects at the premises.

81. As stated above, the appellants and the 3rd respondent have

conflicting views on the distance criteria. It is true that the KSPCB has

given the siting guidelines as found in Annexure- A 29 filed by the

appellants. The said siting guidelines read as follows:

“No new industry specified below shall be permitted be

established within 1.5 km from the embankment of the

streams, rivers, dams as indicated below. If any other

water bodies are the source of drinking water, then

such distance shall be stipulated which will not affect

such waters by discharge of the pollutants”.

A very reading of the above makes it clear that the siting guidelines of the

KSPCB specifically makes it abundantly clear that no new industry

specified therein should be permitted to be established within 1.5 km from

the embankment of the stream, river, dams etc. Significant it is to note that

68

in the instant case it is only an expansion of the existing industry and not

an establishment of new industry. Apart from that, the KSPCB in a reply to

an RTI query has stated that the distance between the factory and the

Hemavathi river is 1.2 km to 1.6 km as a crow flies which could be only the

aerial distance. In its reply, the KSPCB has categorically stated that the

distance between the two points is 2 km as could be seen in Annexure- A

24 submitted by the appellants. Even if the topo map shown under

Annexure A-22 relied on by the 3rd respondent is not part of the topo map

superimposed and is a mere self certification of the project proponent, it

has to be rejected. The Tribunal is of the considered view that the present

project is only an expansion of the existing industry and the KSPCB has

filed its reply stating that the Hemavathi river is situate at a distance of 2

km from the project. Much significance cannot be attached to the distance

criteria since the location of the expanded facility is in the same premises

as that of the existing industry. Hence, this point is decided in favour of the

3rd respondent industry.

Point No. 4: Whether the EC is liable to be set aside on the grounds of

suppression of material facts by the project proponents and non-

application of mind on the part of the EAC for recommending the

grant of EC to the 3rd respondent industry as alleged by the

appellants.

82. Advancing the arguments on the above contentions, the learned

counsel for the appellants would submit that the EIA report was faulty of

suppression of material facts and improper assessment which were

contrary to law. The ToR for the proposed projects mandate that the

information including environmental setting of 10 km radius of the site be

looked at. In this regard, the EIA report is replete with the vital and fatal

69

suppressions. The suppression would amount to fraud and hence the EC is

vitiated on that ground alone. Elaborating the suppressions of the requisite

material aspects, the learned Counsel for the appellants would submit that

as per the socio-economic environment and details of population only 8

villages fall within the radius of 10 km. But in reality, there are 35 villages

and 5 gram panchayats including a large town Krishnarajpet falling within

the radius of 10 km of the proposed project. The project proponent has

admitted that 20 villages fall within a radius of 10 km from the project site

which is contrary to the EIA report. The above aspect was raised in the

public hearing which is evidenced from the questions raised by different

persons and public during the public hearing.

ii. The EIA report was completely silent on the pollution already being

caused by the existing sugar factory and has failed to look into the

combined effect that the additional pollution would have on the same. It is

pertinent to note that there was already high pollution being caused by the

project. But, the same was not at all dealt with and this was also raised in

the public hearing.

iii. The Ash generated from the industry is dumped haphazardly causing

inconvenience to public.

iv. The data allegedly collected in the EIA report was contrary to the data of

KSPCB. The ambient air quality (AAQ) standards as per the EIA report for

the period April, 2011 to June, 2011 were well within the AAQ standards.

However, the inspection reports from KSPCB for the same period indicated

violation in particulate matter. It has been the repeated complaint of the

villagers that the industry has caused very high levels of air pollution which

has led to serious illness among the inhabitants of the villages.

70

v. The project proponent has suppressed the impact of drawing water from

Hemavathi river which is the source of supply of water to the villages in

Krishnarajpet taluk and also the major towns including the Krishnarajpet

and Akkihebbal towns which are within 10 km radius from the proposed

project location. According to the project proponent, 1350 m3 of water

during season and 2850 m3 of water during off season is required every

day is to be drawn from the Hemavathi river for the proposed project.

However, there is no study done in regard to the impact of drawing such

quantum of water from the river on the drinking water needs, on the

riparian rights of the downstream communities or on the flow of the river.

Pertinently, there was no mention of how they are permitted to draw water

from Hemavathi river with the only agreement of the 3rd respondent to draw

water for the sugar industry and nothing about the proposed project. The

3rd respondent attempts to state that as per the agreement entered into

with the State Government allowed them to draw water. The agreement

was with respect only to the sugar factory. Though these aspects were

raised during the public hearing, the same was not answered properly.

vi. The project proponent has suppressed the presence of forest even

within 4 km. According to the reply to ToR, there is no reserve forest

around 25 km. But, reply to the appellants obtained through RTI Act from

the forest department would clearly state that Karoti forest area which

comes under the purview of B.B. Kaval falling under the purview of

Mandya-Krishnarajpet region is at a distance of 3.5 km from the 3rd

respondent industry. But, no permission has been granted to the project

proponent. But, the project proponent has attempted to obfuscate the issue

by contesting the nature of forest. The contention of the project proponent

that it was not a reserve forest but only a social forest cannot be accepted

71

in view of the judgment of the Hon’ble Supreme Court of India in

Godhavarman case. Both the MoEF and the KSPCB were very silent on

this aspect.

vii. The project proponent has also suppressed the archaeological and

historical places within 25 km radius of the project. As per the EIA report,

there are no historical places within 25 km radius of the project which is

completely false. The appellants have provided a list of historical places

and also the photographs of the places which include Lakshminarayana

temple at Hosaholalu from 13th century, Panchalingeshwara temple dating

back to pre-Hoysala period within 10 km which is a protected monument

under the Ancient Monuments and Archaeological Sites and Remains Act,

1958, Brahmeshwara temple, Kikkeri which is a fine specimen of Hoysala

architecture and which was constructed in 1171 A.D. Archaeoligical

Survey of India (ASI) site on the island of Hemavathi river near Akkihebalu

dates to the reign of Tippu Sultan. The project proponents have denied the

very existence of those archaeological and historical important places while

the MoEF and the KSPCB are silent.

viii. There was suppression on the presence of hill/mountains. The EIA

report falsely states that there were no hill/mountains within 25 km. But,

there are mountainous region within 4 km of the proposed project. The

project proponent has denied the very existence and both the MoEF and

the KSPCB are silent. Thus, the EIA report has failed to state the grave

impact that the proposed project and in fact has suppressed the nature of

environment itself. The same has to be termed as deliberate concealment

and misleading data. Thus, in the instant case, the project proponent is

guilty of suppression of several material facts that vitiate the entire process.

72

83. The grant of approval would reflect thereon the non application of

mind by the EAC to relevant consideration and a perusal of records would

reveal that the whole effort has been to justify the project without these

considerations. A reading of the minutes show that the objections raised in

the public hearing were merely listed out but not considered in any manner

whatsoever. The manner in which the objections have been noted are not

reflective of the objections being raised. Though several objections were

raised at the public hearing, they were not even stated in the recording of

the minutes. The detailed scrutiny as required by the notification in order to

make an evaluation has not been done and there is nothing to indicate in

what manner the project proponent has answered various objections raised

in the public hearing. The contention of the 3rd respondent that the EAC

called upon the 3rd respondent to provide other details and information

regarding the project was blatantly false and the same was nowhere

reflected in the EAC meeting which merely accepted the EIA report of the

3rd respondent. In order to substantiate the above contentions, the learned

counsel for the appellants relied on the following cases:

1. Utkarsh Mandal Vs. Union of India (W.P.(Civil).No. 9340/2009 of the

Hon’ble Delhi High Court.

2. Samata and another Vs. Union of India reported in 2014 ALL(I) NGT

Reporter (1) (SZ).

3. Jeet Singh Kanwar and another Vs. Union of India and another

(Manu/GT/0033/2013).

4. Gau Raxa Hitraxak Manch and Gauchar Paryavaran Bachav Trust

Vs. Union of India and others (Manu/GT/0078/2013).

84. Countering the above submissions, the 3rd respondent industry in

his sincere attempt of defending the project would submit that all the above

contentions were unfounded since the project proponent did not suppress

any relevant or material facts. During the public hearing all the participants

73

were given opportunity to raise their objections and voice their concerns

and they were all minuted with all clarifications and necessary additional

information. The final report was placed before the EAC. The EAC, after

full consideration of all relevant information and materials and after a

thorough application of mind was satisfied that it was a fit case for granting

the EC to the 3rd respondent industry for the impugned projects. The

learned counsel appearing for MoEF putforth the arguments in the line of

the 3rd respondent industry.

After giving anxious considerations on the submission made and

thorough scrutiny of all the materials made available, the Tribunal has

irresistibly come to the conclusion that there was suppression of material

facts and relevant particulars which the project proponent was duty bound

to place before the EAC to enable the same to take a decision whether to

grant not the EC for the project in question. As rightly pointed by the

learned counsel for the appellants, discrepancy is noticed in respect of the

existence of villages in the materials placed.

85. From the materials available, it is quite evident that all along the

in the past there were a number of complaints alleging pollution being

caused by the existing sugar industry of the 3rd respondent and then and

there actions were taken by the KSPCB. It could also be seen that the 3rd

respondent industry was taking pollution control and preventive measures.

Under the circumstances, it is essential to make a comprehensive study as

to what could be the impact of the expansion of the project while there

were complaints of pollution already caused by the existing industry.

86. As rightly pointed out by the learned counsel for the appellants,

the data collected and placed in the EIA report on AAQ standards as if they

74

were well within the standards was contrary to the inspection reports of the

KSPCB indicating that there were violations.

87. It is true that the project proponent has entered into an agreement

with the State of Karnataka for drawal of water for the existing sugar

factory and certainly not for the proposed projects in question. It is not

known as to how it was permissible to draw water under the same

agreement which would be in violation of the National Water Policy, 2002.

Hence, the same was not taken into consideration from the point of view of

water allocation, provision for drinking water, irrigation hydor-power

generation, ecology etc.

88. Surprising it was to note that as per the reply to ToR, there was

no reserve forest around 25 km of the project site. But, according to the

Forest Department of the State, forest area was situate within 4 km from

the sugar factory of the 3rd respondent. But the 3rd respondent contends

that it was not reserve forest, but only a social forest. At this juncture the

EAC should have taken into consideration the judgment of the Hon’ble

Apex Court and the definition of forest as stated in T.N.Godhavarman

case.

89. While there are a number of archaeologically and historically

important places as shown by the appellants, the EIA report has stated that

there were no historical and archaeological places which cannot be

accepted. It remains to be stated that in respect of most of the aspects,

objections were raised by the public and even the minutes recorded during

the public hearing listed the letters and representations from the public

which were received. While so, the project proponent should have perused

all the necessary details at the time of preparation of final draft. Thus, it is

75

quite evident that the project proponent as contended by the appellants’

side had not cared to place or had suppressed all the essential and

necessary particulars on different aspects enabling the EAC to decide the

grant or not to grant the EC. Equally, the EAC has not exercised proper

care to take into consideration all the materials made available. If only the

EAC had exercised proper care, lack and deficiency of the relevant

particulars would have come to its knowledge.

90. The Tribunal had an occasion to consider the points referred to

therein in a similar case in Samata and another Vs. Union of India reported

in 2014 ALL(I) NGT Reporter (1) (SZ) on the non application of mind by

EAC at the time of making recommendations and observed as follows:

“43) Stage-IV, Appraisal: (1) Appraisal means together

with the reasons for the same. The plain meaning of the

word ‘appraisal’ is to ‘appraise the thing’. The word

‘appraisal’ in legal forlorn is defined in Black’s Law

Dictionary as follows:

“Appraisal: (1) The determination of what

constitutes a fair price, valuation, estimation of work, (2)

the report of such determination- also term

‘appraisement’.

44) Thus, the appraisal of the project requires not only

evaluation, but also estimation of works in order to make

an assessment or determination of the same. The

process of appraisal would certainly require application

of mind independently and make evaluation of the

available materials to make an approval to regulatory

authority to grant EC or place before the regulatory

authority with the report to refuse EC. The notification

makes it mandatory not only a scrutiny but also a

detailed scrutiny by the EAC or SLAEC of the application

and other documents like final EIA report, outcome of the

public consultation including public hearing proceedings

submitted by the Project Proponent. The word ‘scrutiny’

should have been employed in the Notification by the

76

Legislature with clear intention that a critical observation

or examination of all the available materials before

submitting a recommendation to the regulatory authority.

The Notification requires a categorical recommendation

from the EAC or SLEAC on conclusion of the

proceedings of appraisal. Hence, the appraisal cannot be

a mere formality or a simple ritual to pass on. The

Hon’ble High Court, Delhi in Utkarsh Mandal Vs. Union

of India ( 2009 X AD (Delhi) 365 has held as follows:

“We, therefore, hold in the context of EIA

Notification dated 14 September 2006 and the

mandatory requirement of holding public hearings

to invite objections, it is the duty of the EAC, to

whom the task of evaluating has been delegated,

to indicate in its decision the fact that such

objections, and the response thereto of the project

proponent were considered and the reasons why

any or all of such objections were accepted or

negatived. The failure to give such reasons would

render the decision vulnerable to attack on the

ground of being vitiated due to non application of

mind to relevant consideration and therefore

arbitrary. (Para 4).”

45) The Hon’ble Apex Court in Maharashtra State

Board of Secondary and Higher Secondary Education

Vs. K.S. Gandhi (1991) 2 SCC 716 has held as

follows:

“21. Thus, it is settled law that the reasons are

harbinger between the minds of the maker of the

order to the controversy in question and the decision

or conclusion arrived at. It also excludes the chances

to reach arbitrary, whimsical or capricious decision or

conclusion. The reasons assure an inbuilt support to

the conclusion/decision reached. The order when it

affects the right of a citizen or a person, irrespective

of the fact, whether it is quasi judicial or

administrative, fair play requires recording of germane

and relevant precise reasons. The recording of the

reasons is also an assurance that the authority

concerned consciously applied its mind to the facts on

record. It also aid the appellate or revisional authority

77

or the supervisory jurisdiction of the High Court under

Article 226 or the appellate jurisdiction of this Court

under Article 136 to see whether the authority

concerned acted fairly and justly to mete out justice to

the aggrieved person.”

46) The NGT in Appeal No. 20/2013 in Rudresh Naik Vs.

Goa State Coastal Zone Management Authority has

held as follows:

“ It is settled rule that administrative authorities which

are dealing with the rights of the parties and are

passing orders which will have civil consequences,

must record appropriate reasons in support of their

decisions. Certainly, these decisions must not be like

judgments of the courts, but they must provide insight

into the thinking process of the authority as to for what

reasons it accepted or rejected the requests of the

applicant. (Para 12, 13 and 14)

47) Placing reliance on the above decisions, the learned

counsel appearing for the appellants has submitted that

the EAC has not whispered for what reasons it accepted

the materials available and made a recommendation that

the project is worthy of grant of EC or set out the reasons

to reject the objections or concerns made at the time of

public hearing. 43) Stage-IV, Appraisal: (1) Appraisal

means together with the reasons for the same. The plain

meaning of the word ‘appraisal’ is to ‘appraise the thing’.

The word ‘appraisal’ in legal forlorn is defined in Black’s

Law Dictionary as follows:

“Appraisal: (1) The determination of what constitutes a

fair price, valuation, estimation of work, (2) the report of

such determination- also term ‘appraisement’.

51) The decision relied on by the 3rd respondent reported

in (2008) 14 SCC 306 DC in the matter of Mylarappa Vs.

Dr. R. Venkatasubbiah and others cannot be applied for

the reason that it was in respect of a resolution passed by

a selection Board for appointment wherein it was held that

the Board need not record its reasons in the absence of

any rule or regulation requiring to do so and in the

absence of mala fides attributed against the members of

the Board. It is true that the appellants have not attributed

any mala fides against the members of the EAC. But, in

78

the instant case, there was a duty cast upon the members

of the EAC as mandated by the EIA Notification, 2006 to

record the reasons both for accepting the proposal on the

material available to make a recommendation for the grant

of EC and also the reasons why any or all the objections

raised at the public hearing were negative. Admittedly, the

project in question was taken up for consideration in the

64th meeting of the EAC on 30.01.2010 along with other

projects. In so far as the consideration for EC in respect of

the project in question, the minutes of the 64th meeting of

EAC reads as follows:

“ 2.7. 4 x 660 (2640) MW Coal Based Thermal Power

Plant of M/s. Alfa Infraprop Pvt. Ltd., near village

Komarada in Vizianagaram District in Andhra Pradesh-

Reg. Environmental Clearance.

The proposal is for consideration of environmental

clearance. The Project Proponent gave a presentation

and provided the following information:

The proposal is for setting up of 4 x 660 MW Super

Critical Coal Based Thermal Power Plant at Komarada, in

Vizianagaram District., in Andhra Pradesh. Land

requirement will be 1675 acres (678 ha). Imported coal

from Indonesia will be used as fuel. Coal supply for

imported coal is in place. Ash and Sulphur contents in

coal will be 16% and 0.8% respectively. Coal requirement

will be 7.61 MTPA. However, the project proponent

informed that at a later stage, it is proposed to use

domestic coal to which the Committee informed that it is

not a matter of concern to this Committee since the

appraisal presently was being done with the imported coal

as the fuel. Water requirement will be 8000 cubic

meter/hour, which will be met from the confluence point of

Nagavalli and Jhanjavathi rivers at a distance of 2 km

from the site. Water linkage has been obtained from

Government of Andhra Pradesh. Distance of pipeline from

pumping point will be 2.5 km. Fly ash will be utilised by

cement manufacturers viz., M/s. ACC Ltd., M/s. India

Cements Ltd., and M/s. Penna Cements Ltd., A twin flue

275 m stack will be installed. There are no wildlife

sanctuaries, national parks, biosphere reserves, heritage

sites etc., within 10 km of the site. Public hearing was held

on 04.12.2009. Cost of the project will be Rs. 11,838

crore.

79

The Committee also discussed the issues raised in the

public hearing and the response made by the project

proponent. The main issues raised were regarding nature

of land proposed to be acquired; impact on Totapalli and

Jhanjavati reservoirs; compensation for the displaced

people; employment of local people; civic amenities like

health and education facilities for villagers; impact due to

fly ash generation; impact on flora and fauna; impact on

reserve forests within 10 km of the site etc., The project

proponent submitted its response to the issues raised in

the public hearing. The project proponent also submitted

that no litigation is pending in any Court with respect to

the project.

Based on the information and clarifications provided,

the Committee recommended the project for

environmental clearance subject to stipulation of the

following specific conditions.”

54) Concededly, following the public notices in leading

news papers and circulating the draft EIA, a public hearing

was held on 04.12.2009 at the project site as required by

the EIA Notification, 2006. Large number of persons who

participated in the public hearing were given sufficient

opportunity to put forth their objections and concerns

which were recorded in the minutes of the meeting as

could be seen from the available materials. It is also not

the case of the appellants that the persons assembled

were not heard or minutes were not recorded properly. As

rightly pointed out by the counsel for the respondents,

none of the inhabitants of the area who participated in the

public hearing filed any appeal being not satisfied with the

clarifications given by the Project Proponent during the

public hearing. It is pertinent to point out that no material is

available that either of the appellants was available at the

time of public hearing. It is true that merely because of

their absence the right to challenge the proceedings or

grant of EC is not taken away. But, it might not be able to

state who were all present at the time and in particular, the

persons from nearby Odisha State. Paragraph 6 of

Section 3 of EIA Notification dealing with Public

Consultation requires the concerned Pollution Control

Board to invite response from the concerned persons in

the website, the summary of EIA report in the format

Appendix-III A. It does not require an EIA report in local

language. But, it requires only a summary of the report.

The contentions put forth by the appellants’ side that the

80

applicants should have made a request to the Member

Secretary of the State Pollution Control Board of Odisha

State for making necessary publication in the concerned

district cannot be accepted since the EIA Notification

mandates that the public hearing should be held only in

the States or Union Territory where the project is sited. In

the instant case, it is not in controversy that the project

plant is entirely sited in Andhra Pradesh. Apart from that, a

video CD of the public hearing furnished during the

enquiry of the appeal was viewed by us. In every given

case, where EC granted is challenged, one of the grounds

is that the public hearing was not conducted properly as

required by the EIA Notification, 2006 and hence, on the

ground the EC has got to be scrapped. The Tribunal is of

the considered opinion that even assuming that there is

lapse in the public hearing, it would not be proper to

declare the same as illegal or invalid unless the appellants

are able to show that the objections and concerns raised

by the people during the public hearing are either not

reflected in the proceedings recorded and some prejudice

has been caused or not. The validity or otherwise of the

public hearing depends always upon the facts and

circumstances of each case. If there is a gross violation of

the procedure and thereby public hearing becomes a

mockery, the Tribunal may not have any hesitation to

declare the same as invalid. But, it is not the case of the

appellants that the objections and concerns raised by the

people present during the public hearing were not

reflected in the minutes of the proceedings recorded

whereby it has caused any prejudice. Hence, the

contention put forth by the appellants’ side that the public

hearing was not conducted as contemplated under EIA

Notification, 2006 is without force and has to be rejected.

Accordingly, this point is in favour of the respondents.

55) The EAC is a High Level Committee entrusted with the

task of evaluating the projects, which exercise it has to do

with its wisdom, experience and expertise of the members.

Needless to say, while doing that exercise for such

evaluation, the Committee should keep wider interest of

the nation as paramount in its mind. A duty is cast upon

the EAC to strike a balance between the development on

one side and ecology and environment on the other,

thereby ensuring larger interest of the society of the State.

While such vital and indispensable task is entrusted with

the fervent hope and expectation, shirking of responsibility

in a hasty or evasive manner would not only be against

81

the objective of its constitution, but also defeats the

purpose for which the Committee is functioning. Where a

particular point is not decided unanimously, specific noting

should be prepared and scientific reasons for accepting

the majority view should be recorded and maintained for

future reference. It should not be forgotten by the EAC that

either the acceptance or rejection of a proposal should be

the result of a proper and purposeful exercise on the

recommendations of which the regulatory authority can

safely act and take a correct decision thereon”.

91. After a careful scrutiny of the entire materials available and

considering the elaborate deliberations made by the learned counsel on

either side, the Tribunal is satisfied that the procedural formalities as

required by the EIA Notification, 2006 have been followed except at the

crucial stage of appraisal as referred to above in Samata and another Vs.

Union of India reported in 2014 ALL(I) NGT Reporter (1) (SZ) Samata and

another Vs. Union of India reported in 2014 ALL(I) NGT Reporter (1) (SZ).

92. Under the circumstances, keeping in mind the Precautionary

Principle and Principle of Sustainable Development as envisaged under

section 20 of the NGT Act, 2010 the Tribunal is of the considered view that

instead of scrapping the EC granted by the 1st respondent, MoEF to the 3rd

respondent industry dated 31.12.2012 for the establishment of

molasses/grain based distillery (45 KLD), expansion of Co-generation Plant

(from 12 MW to 30 MW) and Captive Power Plant (1.5 MW) at Makavalli

village, Mandya District, State of Karnataka it would suffice to keep the EC

under suspension for a period of six months herefrom with a direction to the

MoEF to carry out a re-exercise of the appraisal within the said priod by

calling for additional information and clarifications in respect of all concerns

and objections even if they are minor in nature, consider the same at the

time of meeting to be convened and conducted for the said purpose after

82

giving an opportunity to the project proponent to be present at the time of

that meeting. The EAC is directed to consider each and every issue

separately and independently and record the reasons either for rejecting or

accepting the concerns and objections and also the response by the

Project Proponent thereon enabling thereby to understand both the Project

Proponent and Objectors, ensuring transparency in the process of

recommending either for acceptance or for rejection of the EC by the

regulatory authority, namely the MoEF.

93. In view of the above, the KSPCB is directed to revisit the CFE

originally granted to the 3rd respondent industry dated 24.04.2013 under

Water Act and Air Act pertaining to the expansion of the projects which is

under challenge and if and when EC is granted by the MoEF in favour of

the 3rd respondent industry make suitable variations in the conditions both

general and specific, if and as warranted.

94. With the above directions and suggestions the appeal is

disposed of accordingly.

No cost.

Appeal No. 56 of 2013 (SZ): Whether the appellant is entitled for a

direction to KSPCB to withdraw the stop work order dated 15.06.2013.

95. Admittedly, the 3rd respondent, M/s. Coromandel Sugars Ltd. has

been operating its sugar industry with a capacity of 2500 TCD in S.F. No.

151, Makavalli village, Mandya District, State of Karnataka. It is not

disputed that the said industry has been carrying on its operation pursuant

to the approvals given by the KSPCB. The industry made an application for

the establishment of molasses/grain based distillery (45 KLD), co-

83

generation plant (30 MW) and CPP (1.5 MW) at the project location.

Following the grant of EC by MoEF, the 3rd respondent applied to the

KSPCB for consent for the expansion project. After considering the said

request, the KSPCB granted the consent on 25.04.2013 for the

establishment of co-generation plant as could be seen from the Annexure –

A 2. Based on the same, the industry commenced the construction works

relating the co-generation plant. As stated above, both the grant of EC by

MoEF and the CFE by the KSPCB are the subject matters of the Appeal

No. 21 of 2013 (SZ) and Application No. 152 of 2014 (SZ), respectively.

96. While the matter stood so, in view of the protest and agitation, the

KSPCB issued a communication to the Karnataka Rajya Raitha Sanga in

June, 2013 informing that their grievance against the project could not be

addressed in view of the pendency of the appeal against the EC before the

Tribunal. But, the KSPCB has served the stop work order dated 15.06.2013

directing the industry to stop all construction works relating to the co-

generation plant until further orders as could be seen in Annexure- A 1 in

Application No. 56 of 2013 (SZ). Under the Annexure-A 4 and A-5 dated

17.06.2013 and 19.06.2013, respectively, the 3rd respondent informed the

KSPCB that the construction works have reached the completion stage and

also agreed not to use coal as an auxiliary fuel till the disposal of the

appeal. As no action was taken by the KSPCB, it was necessitated for the

industry to prefer the Appeal No. 56 of 2013 (SZ) before the Tribunal

challenging the stop work order. The respondent, KSPCB and respondents

filed their replies.

97. Pending the proceedings before the Tribunal, KSPCB constituted

a Committee to find out the question whether the industry can be permitted

84

to use coal as a substituting fuel. After making an inspection and survey,

the Committee filed a report on 17.12.2013 which reads as follows:

“The Committee discussed the use of coal as

auxiliary fuel vis-a-vis TAC’s opinion. The committee

recommends permitting the use of 15% coal as

auxiliary fuel along with bagasse with following

specific condition that,

1. The industry shall meet the emission norms of

particulate less than 50 mg/Nm3.

2. The industry should use locally available bio-mass

as auxiliary fuel to boiler to maximum extent. In case

of shortage, coal could be considered as auxiliary

fuel to a maximum of 15% of the total fuel.

3. The industry shall establish AAQ station at the

location where the maximum ground level

concentration is expected based on the

mathematical modelling study in consultation with

local officer”.

98. As per the recommendations of the Committee, the industry can

be permitted to use 15% coal as auxiliary fuel. The learned counsel for the

KSPCB made it clear that the stop work order served on the 3rd respondent

industry can be withdrawn if the industry is willing to strictly follow the

recommendations made by the Committee along with conditions. The

counsel for the 3rd respondent also expressed the willingness of the industry

to follow the recommendations of the Committee along with specific

conditions. The statements made by both the counsel are recorded.

99. In view of the fact that the impugned EC granted in favour of the

3rd respondent industry by the MoEF is suspended for a period of six

months along with the directions given above, the 3rd respondent industry

cannot continue with the constructional activities of the impugned

85

expansion. Hence, the stop work order issued by the KSPCB, the subject

matter of the challenge in this appeal shall continue to have force till the

time of grant of EC for the impugned expansion by MoEF. There is no

impediment for the withdrawal of the impugned stop work order by KSPCB

if and when EC is granted by the MoEF in favour of the 3rd respondent

industry. It is also made clear that this order will not in any way impede the

production activities of the existing industry of the 3rd respondent in the

same premises. Thus, with the above direction the Appeal No. 56 of 2013

(SZ) is disposed of.

No cost.

Justice M. Chockalignam (Judicial Member)

Prof. Dr. R. Nagendran (Expert Member)

Chennai Dated, 12th May, 2015