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)

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

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

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)

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 Environmental Result collection Norm to be (Mg/Nm3) maintained

1. 20/02/2007 50 161

2. 29/03/2007 50 707

3. 11/05/2007 50 514

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

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

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

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

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.

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

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.

st 41. The 1 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

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.

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

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

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

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.

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.

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

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

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

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

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,

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.

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

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

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

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.

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

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:

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

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

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

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

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

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

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.

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

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

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

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

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

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

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,

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

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

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

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

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

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.

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

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.

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

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

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

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

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

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

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.

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

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

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

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-

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

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

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