Hanuman Laxman Arooskar vs Union of India & Ors.

Disposing of the Miscellaneous Application, the Court HELD: 1. During the course of the judgment which was rendered by this Court on 29 March 2019, certain flaws were noticed in the process leading up to the grant of an EC on 28 October 2015. The project proponent had not complied with its obligation to make a full disclosure of information on material aspects of the environment in Form 1 as an intrinsic part of the EIA process. This Court specifically recorded its concerns on vital aspects which had not been adequately addressed by the EAC. Having noticed the flaws in the process and the deficiencies in the decision making process of the EAC, the Court directed the EAC to revisit the recommendations made by it for the grant of an EC including the conditions which it had formulated, having regard to the specific concerns which were highlighted in the judgment. Thereafter if the EAC were to allow the construction to proceed, it was directed to impose additional conditions to protect the terrestrial eco-systems. The EAC was under a specific mandate to lay down conditions pertaining to air, water, noise, land and the biological and socio-economic environment. During the course of this judgment, this Court has traced the process as it evolved before the EAC following the earlier directions of this Court. The net result of the process is that the concessionaire has been subjected to a slew of mitigatory conditions: 53 in the original EC, 16 at the behest of NGT and 40 imposed by the EAC in the second round. On a reading of the process leading upto the present proceeding, it cannot be said that the EAC has, in its appraisal process, ignored the concerns which were highlighted by this Court. The appellant focused submissions on four areas namely (i) Forests; (ii) ESAs; (iii) Western Ghats; and (iv) Flora and Fauna. The EAC has adequately addressed these concerns and laid down additional conditions to ensure the adequate protection of the environment. [Para 42][1069-G-H; 1070-A-D]

2. A comprehensive process has been followed by the EAC bearing in mind the requirements of the Airport Guidance Manual. The EAC took note of the presence of reserved forests and of ESAs in the Western Ghats and deliberated on the impact of the construction and operation of the proposed airport on flora or fauna, hydrological systems and climatic variations. The process which has been adopted by the EAC and its ultimate conclusions must be scrutinized, in the course of judicial review, in the context of the limitations which are attached to the court conducting a merits based review. The EAC has accounted for the relevant factors outlined by this Court in its previous judgment in the assessment leading to the grant of the EC. [Para 44] [1072-C-F]

3. The evaluation of merits is a matter which primarily rests with an expert authority. The court can certainly supervise procedural compliance and ensure that all necessary inputs which are required to be factored into the decision-making process have been duly borne in mind. Once this has been done, the court must be circumspect in micro-managing the decision-making process by the EAC by substituting its own opinion for that of the EAC. Undoubtedly, no process can be perfect or free from studied criticism. The Appellant has attempted to perform such an exercise when it was submitted that the collection of primary faunal data from a nearby village and secondary data from ZSI sources was not an adequate means of dealing with the concerns expressed by this Court. In assessing these criticisms, this Court must equally be cognizant of the fact that by the judgment of this Court dated 29 March 2019, the EAC was required to carry out the exercise within a period of one month from the receipt of the order of this Court. The Court did not quash the EC but directed that it should remain under suspension until the EAC revisited its recommendations in the light of the concerns which were expressed by this Court. Having assessed the process which took place following the judgment of this Court and the outcome, it would be difficult for this Court to hold that it fails to meet the standards which the court applies in the course of judicial review in environmental matters. [Para 45][1073-B-F]

4. For the above reasons, the minutes of the meeting of the EAC dated 23 April 2019 are taken on record as prayed for. The additional conditions which have been imposed by the EAC shall, together with the original conditions of the EC dated 28 October 2015 and the directions issued by the NGT be cumulatively observed. [Para 46][1073-G]

5. The earlier judgment of this Court highlighted numerous deficiencies by the project proponent leading to the grant of the EC. This Court highlighted numerous concerns including the preservation of forests, the existence of ESAs with their attendant features and the impact of the proposed project on natural water channels. The Court also noted the abject failure of the project proponent to provide complete information on the existence of reserved forests. In the proceedings that followed the judgment of this Court, the project proponent sought to remedy its failure by taking into account additional information on significant aspects of the environment. In the process leading to the grant of the EC as well as the lifting of its suspension by this Court, numerous mitigatory conditions have been imposed on the project proponent. We deem it appropriate to ensure the oversight of the project by a specialized body to ensure compliance with the directions cumulatively issued by this Court. This Court directs the National Environmental Engineering Research Institute to be appointed to oversee compliance with the directions cumulatively issued by this Court. The project proponent shall bear the costs, expenses and fees of NEERI. [Para 48] [1090-A-D]

Lafarge Umiam Mining Private Limited v. Union of India (2011) 7 SCC 338 : [2011] 7 SCR 954 – relied on. Hanuman Laxman Aroskar v. Union of India (2019) SCCOnline SC 441 – referred to.