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KIIT SCHOOL OF LAW

BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI

IN THE MATTER OF:

BHALACHANDRA BHIKAJI NALWADE……………….………………. APPELLANT

Vs.

MINISTRY OF ENVIRONMENT & FORESTS & ORS………………… RESPONDENT

(APPEAL NO. 21 OF 2011)

SUBMITTED BY:

TUSHAR JALAN (1282118)

BBALLB (B), 8th Semester

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TABLE OF CONTENTS

1. Statement of Facts ............................................................................................................... 4

2. Statement of Issues ............................................................................................................. 5

3. Arguments ........................................................................................................................... 6

4. Judgement ......................................................................................................................... 10

5. Critical Analysis................................................................................................................ 11

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LIST OF PARTIES

1. Bhalachandra Bhikaji Nalwade

At P. O. – Ganpatipule

Taluka/District – Ratnagiri

Maharashtra …………………………………………………………………… Appellant

AND

1. Ministry of Environment & Forests

Government of India

Through the Secretary Paryavaran Bhawan,

CGO Complex Lodhi Road,

New Delhi – 110 003.

2. Maharashtra Pollution Control Board

Through the Member Secretary Kalpatru Point,

3rd& 4th Floor SionMatunga Scheme Road No. 8

Opp. Cine Planet Cinema, Near Sion Circle,

Mumbai (East) – 400022.

3. M/s JSW Energy (Ratnagiri) Limited

Ambassador Plaza, 1st Floor Mal Naka,

Ratnagiri – 415612 ………………………………………………………… Respondents

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STATEMENT OF FACTS

This appeal is filed by the Appellant being aggrieved by the grant of Environmental Clearance (for

short EC) for the 1200 mw (4x300 mw) coal based Thermal Power Plant (for short TPP) in favor

of M/s JWS Energy Limited at Jaigad, Ratnagiri District, Mahrashtra State, by the Ministry of

Environment & Forests (for short MoEF), Government of India dated 28.6.2010.

It is the case of the Appellant that he is a resident of Ganpatipule Taluka, Ratnagiri District in

Maharashtra and earns his livelihood mainly from mango business and owns mango orchards in

the project affected area. Ratnagiri district produces Alphonso mangoes which is the primary

source of income for the Appellant. The contention forwarded by Appellant alleged that Sulphur

Dioxide which will be emitted by TPP will cause appreciable adverse effect on the quality as well

as quantity of Alphonso mangoes.

It appears that Respondent No. 1 granted EC in favour of Respondent No. 3 for the establishment

of a coal based thermal power plant (1200 mw) at Ganpatipule Taluka and District Ratnagiri,

Maharashtra State. It is the case of the Appellant that he had filed Appeal No. 7 of 2007 before the

National Environment Appellant Authority, New Delhi and the said appeal was dismissed vide

Order dated 12.9.2008. Aggrieved thereby, the Appellant filed Writ Petition No. 388 of 2009

before the Hon’ble High Court of Delhi and the said Writ Petition was disposed of on 18.9.2009

holding that the order passed by the Expert Appraisal Committee is appealable before the NEAA.

In pursuance of the said order, the present appeal is filed.

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STATEMENT OF ISSUES

ISSUE I

Whether the KKVD report was not properly considered by the EAC while recommending for the

grant of EC and whether it is contrary to the directions of the Hon’ble High Court of Delhi?

ISSUE II

Whether the likely impact due to Thermal Power Plant on the Ecosystem was not yet studied and

the same amounts to violation of Precautionary Principle?

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ARGUMENTS

Whether the KKVD report was not properly considered by the EAC while recommending

for the grant of EC and whether it is contrary to the directions of the Hon’ble High Court of

Delhi?

Appellants

I. The learned counsel from the side of Appellant contends that Expert Assessment

Committee (for short EAC) had not followed the directions of the High Court such as

considering the Dr. Bala Saheb Sawant Konkan Krishi Vidyapeeth Daboli (for short

KKVD) Report. They argued that, the KKVD report was never made available to the EAC

while considering the grant of EC. There is violation of Environment Impact Assessment

Notification 1994 as amended in 2002. The MoEF erred in relying upon the KKVD report

which was inconclusive and does not certify that the proposed project shall not have

irreversible adverse impact on the environment.

II. The EAC of the Ministry of Environment and Forests has chosen to recommend the project

for approval based on one sided information provided by the project and chose not to

interact with any of the farmers despite the fact that re-examination of the project was done

based on the petition filed by the affected farmers and Ratnagiri Jinda Jagruk Manch. The

sub-group report which became the basis for approval of EAC suffers from serious

deficiencies and short comings being based on wrong assumptions. The secondary studies

relied on by EAC were not done on mangoes by the KKVD. The impact due to generation

of Sulphur dioxide as well as the resultant acid rain (blended with rain and dew) has not

been taken into account. Sensitivity of mango to Sulphur dioxide has not been considered.

The EAC has wrongly concluded that there are no studies on impact of thermal power plant

and thermodynamic efficiency of TPP was not discussed in the EIA or by EAC in its report.

Therefore, the EC granted in favour of respondent No. 3 is arbitrary and illegal and liable

to be set aside.

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Respondents

I. It was argued by the learned counsel of the respondent that the respondent No. 1 placed

the matter before the Expert Appraisal Committee (Thermal Power) in its 58th, 60th and

62nd meetings held during November 10-11, 2009; December 11-12, 2009 and January

11-12, 2010, respectively. The Expert Appraisal Committee (Thermal Power) have

scientifically viewed the likely impact on Alphonso mangoes before recommending

grant of EC for 4x300mw coal based TPP. The Respondent No. 1 in acceptance of the

recommendations of the Expert Appraisal Committee upheld the EC issued on 17.5.2007

with additional conditions including installation of Flue Gas Desulphurization (FGD).

II. It was further argued that KKVD Report was not ready since the data are to be gathered

over a period of four years as per the work plan. In view of the above, as directed by the

EAC, the Sub-group was formed to conduct a study and make a report stating that there

is no threat to Alphonso mango trees because of the TPP. The report concluded that

1. Alphonso mango and cashew nut plants are phenotypically similar in all the

parameters estimated suggesting that both the species tolerant to these

concentrations. This is also supported by absence of leafy injury in saplings of

Alphonso mango when exposed to exposure of very high concentrations of SO2

(2132 æg m-3). These observations suggest that Alphonso mango is tolerant to much

higher levels of SO2 than those predicted by the model

2. The preliminary data from enclosure experiments conducted also reveal that the

concentrations of SO2 and NOx used have no visible impact on the mango. In fact

these concentrations were never reported from the areas close to old coal fired

thermal power plants. The area is a ghat located close to the tropical seas with

excellent drainage system and receives high rainfall for about 4 to 6 months and there

are no winter inversions. In other words self-purification of atmosphere takes place

and there is no buildup of pollution load.

III. It was also contended that there are no Alphonso mango orchards elsewhere nearer to

Thermal Power Project where studies could be conducted and analysed. This is a peculiar

situation and in the light of that the KKVD was directed to conduct two phase study i.e.

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one year pre-commissioning stage and three years post commissioning stage. The

KKVD's first annual report has been furnished in April 2009 which was to be followed

by subsequent reports over a period of three years. The first report of KKVD was placed

before the EAC /MoEF in the meeting held on October 2009. The available report of

KKVD on the basis of data collected thus far and analysed was considered by the sub-

group. Thus, it cannot be said that the KKVD report was not taken into consideration

while recommending for grant of EC by the EAC.

Whether the likely impact due to Thermal Power Plant on the Ecosystem was not yet studied

and the same amounts to violation of Precautionary Principle?

Appellants

I. Precautionary principle makes it mandatory for the Government to not only anticipate and

prevent but also attack the causes of environment degradation. Where there is an

indefinable risk of serious or irreversible harm, it may be appropriate to place the burden

of proof on the person or entity proposing the activity that is potentially harmful to the

environment and that lack of scientific certainty should not be used as a reason for

postponing measures to prevent such harm to the environment.1 The learned counsel of

Appellant alleged that the full impact and effects of the TPP on the Alphonso Mango

plantations and ecosystems of the area has not been fully studied and no study was

conducted on the mangos per se by the KKVD. The secondary studies relied on by EAC

were not done on mangoes by the KKVD. No study on flowering stage of mangoes was

done. The impact due to generation of Sulphur dioxide as well as the resultant acid rain

(blended with rain and dew) has not been taken into account. Sensitivity of mango to

Sulphur dioxide has not been considered. No study on carrying capacity of the area was

done. The EAC has wrongly concluded that there are no studies on impact of thermal power

plant and thermo dynamic efficiency of TPP was not discussed in the EIA or by EAC in

its report.

1 A.P. pollution Control Board vs. Prof. M.V.Nayadu, (1999) 2 SCC 718.

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Respondents

I. The Respondents argued that the EAC has considered the precautionary principle. It is

further argued that the EAC as well as the MoEF have taken all the precautionary

measures in the conditions attached to the EC in respect of the effect of TPP on the

mango plantations and other significant environmental issues. The measures that the

MoEF has advised the Respondent No. 3 are as follows:

1. Flue Gas De-sulphurisation (FGD) system shall be installed before commissioning

the project and action in this regards shall be submitted within three months to the

Ministry.

2. Dense plantation of density not less than 2500 trees/shrubs per hectare (and survival

rate not less than 70%) including plantations of Alphonso mango shall be raised

within and outside the study area to act as buffer.

3. M/s JSWERL shall reduce the power generation and/or change to a fuel with low

Sulphur content or close the power plant, if so required in case the SO2 level exceed

the prescribed standards till the installation of FGD.

4. If at any point of time adverse impacts on mango orchards are noticed/established, the

plant shall be shut-down.

On the basis of the above, it can be said that the official Respondents have taken the precautionary

principles into consideration in the process of granting of EC. Further, it also cannot be said, that

the EAC and MoEF are prejudiced by the earlier grant of EC while reconsidering the EC. All other

allegations made by the Appellant have no bearing on the issues in question, therefore, they need

not be delved further.

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JUDGEMENT

On the basis of above arguments forwarded by the both counsel we conclude that

I. It appears there are no Alphonso mango orchards elsewhere nearer to Thermal Power

Project where studies could be conducted and analysed. This is a peculiar situation and in

the light of that the KKVD was directed to conduct two phase study i.e. one year pre-

commissioning stage and three years post commissioning stage. No doubt, apart from this,

some other study was also conducted which may not have much relevance for the purpose

of this case. Therefore, it cannot be said that the KKVD report was not taken into

consideration and therefore, the directions of the Hon'ble High Court of Delhi were not

adhered to and as such the EC requires to be interfered.

II. After observing the arguments advanced it cannot be said that the official Respondents

have not taken the precautionary principles into consideration in the process of granting of

EC Further, it also cannot be said, that the EAC and MoEF are prejudiced by the earlier

grant of EC while reconsidering the EC. All other allegations made by the Appellant have

no bearing on the issues in question.

For all the above reasons, we are of the considered opinion that the appeal is devoid of any merit

and liable to be dismissed. However, we make it clear that the authorities concerned shall monitor

and take care of the Precautionary Principle and the post commissioning mitigative measures

attached to the EC and take appropriate action as and when necessary. The appeal is accordingly

dismissed. No order as to costs.

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CRITICAL ANALYSIS

The above judgement which was given by Principle Bench of NGT is conclusive, determinant and

based of solid legal reasoning. In the given judgement I completely agree with the Tribunal order.

As for first issue which talks about whether the KKVD report was properly considered by the

EAC, it was sufficiently proved that the Respondent No. 1 has adhered to the said report and has

formulated their opinion on the basis of same. The second issue which deals with Precautionary

Principle it was aptly showed that the Respondent No.1 has formulated measures that should be

strictly followed by Respondent No.3.

So, on both the issues the Respondent has negated the contention forwarded by the Appellant. On

the basis of this appeal was liable to be dismissed

According to my opinion the decision perceived by the tribunal is apt and it is the interest of justice.