Vedanta Alumina Ltd. v. Prafulla Samantra & Ors.

3. The second respondent, i.e. the Orissa State Pollution Control Board announced a

public hearing on 20th October, 2005 for a proposed aluminum smelter plant under the

provisions of the Environment Impact Assessment (EIA) Notification, 1994. The first

respondent objected to the public hearing on the ground that this is not a separate project

but the third stage of a Bauxite Mining Project. The public hearing was cancelled and

re-scheduled for a later date on 09.12.2005. The first respondent made another

representation challenging the faulty EIA of the project on 9.12.2005, inter alia stating

the following:

"The Public Hearing for this Aluminum Smelter, an integral part

of Vedanta‟s bauxite miming, alumina refinery and aluminum

smelting project which is currently sub judice is legally wrong.

State Pollution Control Board is going ahead with the Public

Hearing without taking into account the recommendations of the

Central Empowerment Committee to the Supreme Court of India

which show that Vedanta has violated forest and conservation

laws.

It may be recalled that the CEC in its recommendation to the Apex

Court had asked for the withdrawal of the environmental

clearance to the alumina refinery plant located in Lanjigarh and

strictly recommended not to give the Niyamgiri Hills for bauxite

mining to the company. The three phases of an aluminum plant

involves necessarily the first step of having captive bauxite mining

which would provide raw material for the second step that is the

alumina refinery that in turn will be supplied to aluminum

smelter in the third step. The following situation prevails with

regard to the above three steps, which are essentially part of the

same project.

1. Bauxite mine: License for mining not granted. The CEC

says "It is of considered view that the use of the forest land in an

ecologically sensitive area like Niyamgiri Hills should not be

permitted (para 32, page 52)" and again the CEC says "The

project may only be considered after an alternative bauxite mine

site is identified (para 33, page 53)"

2. Aluminum refinery: The observation of the CEC is

significant on the alumina plant when it says "The casual

approach, lackadaisical manner and the haste with which the

entire issues of the forests and environmental clearance for the

alumina refinery project has been dealt with smacks of undue

favour/leniency and does not inspire confidence with regard to the

willingness and resolve of both the state government and the

MoEF to deal with such matters keeping in view the ultimate goal

of national and public interest. In the instant case had a proper

study been conducted before embarking on a project of this nature

and magnitude involving massive investment, the objections to this

project from environmental/ ecological/ forest angle would have

LPA 277/2009 Page 2 of 17

become known in the beginning itself and in all probability the

project would have been abandoned at this site" (para 32, page

52). The CEC further states that "keeping in view all the facts and

circumstances brought out in the preceding paragraphs it is

recommended that this honourable court may consider revoking

the environmental clearance dated 22.9.2004 granted by the

MoEF for setting up of Alumina refinery plant by M/s Vedanta

and directing them to stop work on the project (para 33, page

53)"

In the EIA of this project it has been mentioned in page 27, point

2.3.1 that the proposed aluminum smelter plant will receive

alumina from the alumina refinery at Lanjigarh, Kalahandi

district of Orissa which is about 240 kms away from the smelter

plant. So public hearing of for an aluminum smelter whose raw

material is planned to be drawn from sub judice Lanjigarh refinery

is completely contingent on the orders of the Honourable Supreme

Court on the Lanjigarh Alumina Refinery. By holding a public

hearing on the aluminum smelter, the Orissa State Pollution

Control Board is exceeding its brief and disrespecting the

Honourable Supreme Court. Therefore, you are requested to kindly

consider this public hearing on 9th December, 2005 null and

void."

4. It is also the case of the first respondent that the appellant illegally started

construction work for its proposed aluminum smelter plant at Brindamal, Jharsuguda,

Orissa without obtaining the mandatory environmental clearance and, therefore, he again

objected before the second respondent by his letter dated 5.6.2006; the receipt of the said

communication is not denied by the second respondent. By its letter dated 8.2.2007, the

second respondent directed the appellant to stop all construction activities till the

appellant obtains environmental clearance from the MoEF.

5. The environmental clearance for the project was granted on 7.3.2007 and

aggrieved by this, the first respondent filed an appeal before the Authority on 5.4.2007.

The Authority, by an order dated 29.1.2008, dismissed his appeal stating that first

respondent is not a "person aggrieved" under Section 11 of the Act. The relevant

paragraphs of the impugned order are extracted hereunder:

"6. The point for decision at this stage is whether he appellant is

eligible to file the appeal in this case. The appellant has submitted

that he has filed this appeal in his personal capacity as President

of Lok Shakti Abhiyan, Orissa Unit. Let us see how the appellant

qualifies to file this Appeal.

7. Section 11(1) of the NEAA Act, 1997 clearly prescribes two

conditions for eliginilty of any person to file an appeal:-

LPA 277/2009 Page 3 of 17

(a) He should be a person aggrieved by the environmental

clearance order.

(b) He should file appeal with stipulated time.

7.1 The term person, as defined under Section 11(2) of the NEAA

Act, 1997, is shown below-

(a) any person who is likely to be affected by the grant of

Environmental Clearances;

(b) any person who owns or has control over the project with

respect to which an application has been submitted for

environmental clearances;

(c) any association of persons (whether incorporated or not) likely

to be affected by such order and functioning in the field of

environment ;

(d) the Central Government, where the environmental clearance is

granted by the State Government and the State Government where

the environmental clearance has been granted by the Central

Government; or

(e) any local authority, any part of whose local limits is within the

neighbourhood of the area wherein the project is proposed to be

located.

7.2 In light of the above, the Appellant is not an aggrieved person

under the clause (b), (c), (d) and (e) of Section 11(2) of the NEAA

Act, 1997 narrowing down the scope to clause (a) of this Section.

The Appellant has however sought to take advantage of clause (a)

of this section by claiming that he is a social and environmental

activist involved in the issues concerning the tribals as well as the

environment. He submitted that he has filed this appeal as

president of Lok Shakti Abhiyan. He and his group has been

closely working among the affected communities of Brundamanl &

Bhurkhamunda District, Jharsuguda, Orissa on the issues of

development.

8. While his representations to the Orissa State Pollution Control

Board and other on faulty Environmental Impact Assessment

Report, postponement of Public Hearing and not attending the

Public Hearing on personal reasons is not disputed, we could not

find him affected in any manner so as to satisfy the criteria laid

down for "person aggrieved" in the judgment of Supreme Court in

the case of Thammanna V. K. Veera Reddy and Ors. as reported at

para 16 of (1980) 4 Supreme Court Cases 62.

9. Having perused all the submissions and the documents filed by

the Appellant, the Respondent, the Authority finds that the

Appellant is not qualified to file this Appeal under clause (a) of the

Section 11(2) of the NEAA, Act 1997. The Appeal is accordingly

not admitted."

6. Aggrieved by the order of the Authority, the petitioner preferred a writ petition

being CWP No. 3126/2008. The writ petition was allowed by S. Ravindra Bhat, J. by

the order under appeal. S. Ravindra Bhat, J., on a detailed analysis of the scheme and

LPA 277/2009 Page 4 of 17

provisions of the Act, came to the conclusion that first respondent has the locus standi to

maintain an appeal before the Authority. The learned Judge observed:

"16. ......the expression "person aggrieved" has to be given a

panoptic import and be understood to include persons like the

petitioner who display interest in social and environmental causes.

This is established by the fact that his organization was closely

following the issue of setting up of aluminum smelter plant during

various stages of the project to the extent that it had, on two

occasions objected to the holding of the „public hearing‟ and sent

a detailed letter elucidating the objections and further when it

learnt about alleged unauthorized construction at the project site,

he wrote to the second respondent, which later directed the third

respondent to stop such activities.

17. .....In the impugned order the Authority acknowledged that

the petitioner had on several occasions in the past made

representations before the Orissa State Pollution Control Board

challenging the holding of public hearing and that the petitioner

could not attend the hearing due to personal reasons. Public

hearings, in such cases, are organized to elicit comments from the

members of public before granting clearance to a project in order

to assess the nature of environmental damage, if any, due to the

likely execution of project and its impact on the rights of

inhabitants and the persons who depend on that area for livelihood

or otherwise. A person who participates in the public hearing, and

thus in the process of decision-making, potentially becomes an

aggrieved person if his grievances are not properly addressed. The

petitioner, though not participating in the public hearing, had

presented his detailed objections before the second respondent

against the holding of public hearing on the ground of faulty

environmental impact assessment report. At one stage, his

representations were found substantial by the authorities. Denial

of the right to appeal would also lead to a highly incongruous

situation whereby someone like him, allowed to participate in the

principal decision making process, is denied the right to question

the findings of the primary decision maker, in the appellate

proceedings."

Consequently the impugned order of the Authority was quashed and the Authority was

directed to entertain and dispose of the appeal of first respondent in accordance with law.

7. Dr. A.M. Singhvi, learned senior counsel appearing for the appellant, relying

upon the decision in Thammanna V/s. K. Veera Reddy & Others, (1980) 4 SCC 62,

emphasized that "a person aggrieved has to be a person with a legal grievance". He

submitted that in the instant case, it is not even the contention of the first respondent that

he is representing any local population which is affected by the project. The first

respondent is not even a local resident of the area. His only contention is that he is

working among the affected communities. It is nowhere his case that any of the affected

LPA 277/2009 Page 5 of 17

persons either asked him to appear on their behalf or raised any grievance to him about

the project. Dr. Singhvi further submitted that Section 11(1) only gives locus to a person

aggrieved to file an appeal. According to him the predominant purpose of Section 11 is

the quick redressal of public grievances. In order to prevent the delays, the Act has

circumscribed the kind of person who can file an appeal against the environmental

clearance. If the objective of the statute was to allow appeals by anyone then instead of

the phrase "person aggrieved", the phrase "any person" would have been used. He

submitted that a person not falling under the definition of „person aggrieved‟ under the

Act can always approach the High Court by way of PIL under Article 226 of the

Constitution of India or the Supreme Court under Article 32 of the Constitution of India.

He also placed reliance on the decisions in Krishna Swami v. Union of India (1992) 4

SCC 605 and Regina v. Secretary of State For Environment, (1990) 2 WLR 187.

8. In reply, Mr. Sanjay Parekh, learned senior counsel appearing for the first

respondent submitted that the question of locus of an individual in our country, as far as

environment is concerned, rests in the public and constitutional law domain. Such

public and constitutional right cannot be curtailed by any statutory enactment. Any

action which affects the environment can be questioned by individual/individuals as a

matter of right as well as duty. Mr. Parekh submitted that the decision of the Supreme

Court in Thammanna V/s. K. Veera Reddy & Others (supra) relied upon by Dr.

Singhvi has no application to the present case where the issues of environment have been

raised. According to him, the expression "person" for the purpose of the Act is used in a

wide manner and includes anyone likely to be affected by the grant of environment

clearance. The use of the word „likely‟ in the Act, clearly establishes that there is no

requirement to show a direct linkage between the activity proposed and the impact on the

aggrieved person. He also referred to the Statement of Objects and Reasons of the Act

which states that the necessity of setting up of National Environment Appellate Authority

was due to Public Interest Litigations filed before the Supreme Court relating to

environment and it was intended to provide quick redressal of public grievances, where

the public could approach by means of petitions, complaints, representations or appeals.

LPA 277/2009 Page 6 of 17

The submission of Mr. Parekh is that the first respondent is working in the area in

question on the environmental issues and following up the issues of this project since

beginning. The first respondent, though was not able to participate in the public hearing

in person, but objections were sent by him to the project authorities and also to Pollution

Control Board. Learned counsel further submitted that welfare statutes have to be

interpreted in a manner which serves the interest of those whom they are intended to

benefit. The protection of forests and the natural environment is a fundamental duty of

every citizen under Article 51-A(g) of the Constitution. The Authority provides a forum

for redressal of grievances on environmental issues and at the same time for those who

are concerned about taking proactive measures to protect the environment. He submitted

that it is settled law that courts should favour an interpretation that promotes the general

purpose of an Act rather than one that does not.

9. Mr. Chandhiok, learned ASG appearing for the Ministry of Environment and

Forest supported the interpretation of Section 11 by S. Ravindra Bhat, J. and also drew

our attention to the decisions of the Supreme Court in Ghulam Qadir v. Special

Tribunal & Others, (2002) 1 SCC 33 and N.D. Jayal v. Union of India & Ors., (2004)

9 SCC 362.

10. It is now well settled by a series of judgments of the Supreme Court that though

the industrial development is of vital important to the country as it generates foreign

exchange and provides employment avenues, it has no right to destroy the ecology,

degrade the environment and pose as a health hazard. In Vellore Citizens' Welfare

Forum v. Union of India, (1996) 5 SCC 647, the Supreme Court held that the traditional

concept that development and ecology are opposed to each other is no longer acceptable.

"Sustainable Development" is the answer. In the international sphere, "Sustainable

Development" as a concept came to be known for the first time in Stockholm Declaration

of 1972. Thereafter in 1987, the concept was given a definite shape by the World

Commission on Environment and Development in its report called "Our Common

Future" popularly known as "Brundtland Report". In 1991, the World Conservation

Union, United Nations Environment Programme and World Wide Fund for Nature,

LPA 277/2009 Page 7 of 17

jointly came out with a document called "Caring for the Earth" which is a strategy for

sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio where as

many as 153 nations signed two conventions, one on biological diversity and another on

climate change. The delegates also approved by consensus three non-binding

documents, namely, a Statement on Forestry Principles, a declaration of Principles on

Environmental Policy and Development Initiatives and Agenda 21, a programme of

action into the next century in areas like poverty, population and pollution. The

Supreme Court noted that some of the salient principles of "Sustainable Development",

as culled-out from Brundtland Report and other international documents, are

Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental

Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and

Cooperate, Eradication of Poverty and Financial Assistance to the developing countries.

The Court noticed that Article 21 of the Constitution of India guarantees protection of life

and personal liberty. The Court also noticed that article 48a of the constitution cast a

duty on the State to protect and improve the environment and safeguard the forests and

wild life of the country and Article 51A(g) of the Constitution spells out duty of citizens

to protect and improve the environment including forests, lakes, rivers and wild life, and

to have compassion for living creatures. The Court also noted that apart from the

constitutional mandate to protect and improve the environment, there are plenty of post

independence legislations on the subject, namely, The Water (Prevention and Control of

Pollution) Act, 1974, The Air (Prevention and Control of Pollution) Act, 1981 and the

Environment Protection Act 1986. In view of the above mentioned constitutional and

statutory provisions, the Court held that Precautionary Principle and the Polluter Pays

Principle are part of the environmental law of the country.

10. In Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC

281, the Court noted that even though laws have been passed for the protection of

environment, the enforcement of the same has been tardy, to say the least. Environment

degradation is best protected by the people themselves. The following observations of

the Court are relevant:

LPA 277/2009 Page 8 of 17

"41. With rapid industrialisation taking place, there is an

increasing threat to the maintenance of the ecological balance. The

general public is becoming aware of the need to protect

environment. Even though, laws have been passed for the

protection of environment, the enforcement of the same has been

tardy, to say the least. With the governmental authorities not

showing any concern with the enforcement of the said Acts, and

with the development taking place for personal gains at the

expense of environment and with disregard to the mandatory

provisions of law, some public spirited persons have been initiating

public interest litigations. The legal position relating to the exercise

of jurisdiction by the Courts for preventing environmental

degradation and thereby, seeking to protect the fundamental rights

of the citizens, is now well settled by various decisions of this

Court. The primary effort of the Court, while dealing with the

environmental related issues, is to see that the enforcement

agencies, whether it be the State or any other authority, take

effective steps for the enforcement of the laws. The Courts, in a

way, act as the guardian of the people's fundamental rights but in

regard to many technical matters, the Courts may not be fully

equipped. Perforce, it has to rely on outside agencies for reports

and recommendations whereupon orders have been passed from

time to time. Even though, it is not the function of the Court to see

the day to day enforcement of the law, that being the function of

the Executive, but because of the non-functioning of the

enforcement agencies, the Courts as of necessity have had to pass

orders directing the enforcement agencies to implement the law.

....

....

....

47. With increasing threat to the environmental degradation taking place in different parts of the country, it may not be possible for any single authority to effectively control the same. Environmental degradation is best protected by the people themselves. In this connection, some of the non-governmental organisations (NGOs) and other environmentalists are doing singular service. Time has perhaps come when the Government can usefully draw upon the resources of such NGOs to help and assist in the implementation of the laws relating to protection of environment. Under Section 3 of the Act, the Central Government has the power to constitute one or more authorities for the purposes of exercising and performing such powers and functions, including the power to issue directions under Section 5 of the Act of the Central Government as may be delegated to them."

11. In Essar Oil Limited v. Halar Utkarsh Samiti & Others, (2004) 2 SCC 392, a two-Judges bench emphasizing the strong link between Article 21 and the right to know particularly about the environmental issues observed: LPA 277/2009 Page 9 of 17

"36. For this purpose the State Government must ask for and

obtain an environmental impact report from expert bodies. The

applicant must also come forward with an environmental

management plan which must be cleared by the experts. To

prevent possible future damage, the State Government must also be

satisfied that the damage which may be caused is not irreversible

and the applicant should be prepared and must sufficiently secure

the cost of reversing any damage which might be caused. The State

Government should also have in place the necessary infrastructure

to maintain periodical surveys and enforce the stipulations subject

to which the permit may be granted. In future the State

Government should, before granting the approval, also call upon

the applicant to publish its proposal so that public, particularly

those who are likely to be affected, are made aware of the

proposed action through the sanctuary or natural park. This will

ensure transparency in the process and at least safeguard against a

decision of the State Government based solely upon narrow

political objectives. Besides the citizens who have been made

responsible to protect the environment have a right to know. There

is also a strong link between Article 21 and the right to know

particularly where "secret Government decisions may affect health,

life and livelihood". The role of voluntary organisations as

protective watch-dogs to see that there is no unrestrained and

unregulated development, cannot be over-emphasized. Voluntary

organisations may of course be a front for competitive interests but

they cannot alt be tarred with the same brush. Our jurisprudence is

replete with instances where voluntary organisations have

championed the cause of conservation and have been responsible

for creating an awareness of the necessity to preserve the

environment so that the earth as we know it and humanity may

survive."

12. In N.D. Jayal v. Union of India (supra), the Court held:

24. The right to development cannot be treated as a mere right

to economic betterment or cannot be limited to as a misnomer to

simple construction activities. The right to development

encompasses much more than economic well being, and includes

within its definition the guarantee of fundamental human rights.

The 'development' is not related only to the growth of GNP. In

the classic work, Development As Freedom, the Nobel prize

winner Amartya Sen pointed out that 'the issue of development

cannot be separated from the conceptual framework of human

right'. This idea is also part of the UN Declaration on the Right to

Development. The right to development includes the whole

spectrum of civil, cultural, economic, political and social process,

for the improvement of peoples' well being and realization of their

full potential. It is an integral part of human right. Of course,

construction of a dam or a mega project is definitely an attempt to

achieve the goal of wholesome development. Such works could

very well be treated as integral component for development.

25. Therefore, the adherence to sustainable development

principle is a sine qua non for the maintenance of the symbiotic

balance between the rights to environment and development. Right

to environment is a fundamental right. On the other hand, right to

LPA 277/2009 Page 10 of 17

development is also one. Here the right to 'sustainable

development' cannot be singled out. Therefore, the concept of

'sustainable development' is to be treated as an integral part of 'life'

under Article 21. Weighty concepts like inter-generational equity

(State of HP v. Ganesh Wood Products), public trust doctrine

(M.C. Mehta v. Kamal Nath) and precautionary principle (Vellore

Citizens), which we declared as inseparable ingredients of our

environmental jurisprudence, could only be nurtured by ensuring

sustainable development.

26. To ensure sustainable development is one of the goals of

Environmental (Protection) Act, 1986 (for short "the Act") and this

is quite necessary to guarantee "right to life" under Article 21. If

the Act is not armed with the powers to ensure sustainable

development, it will become a barren shell. In other words,

sustainable development is one of the means to achieve the object

and purpose of the Act as well as the protection of 'life' under

Article 21. Acknowledgment of this principle will breath new life

into our environmental jurisprudence and constitutional resolve.

Sustainable development could be achieved only by strict

compliance with the directions under the Act. The object and

purpose of the Act: "to provide for the protection and improvement

of environment" could only be achieved by ensuring the strict

compliance with its directions. The authorities concerned by

exercising their powers under the Act will have to ensure the

acquiescence of sustainable development. Therefore, the directions

or conditions put forward by the Act need to be strictly complied

with. Thus the power under the Act cannot be treated as a power

simpliciter, but it is a power coupled with duty. It is the duty of the

State to make sure the fulfillment of conditions or direction under

the Act. Without strict compliance, right to environment under

Article 21 could not be guaranteed and the purpose of the Act will

also be defeated. The commitment to the conditions thereof is an

obligation both under Article 21 and under the Act......"

13. Keeping in view these well settled principles, we may now proceed to examine the provisions of the Act. The Act in question is a remedial and also beneficial statute. It is clear from the scheme of the Statement of Objects and Reasons to the Act appended to the Bill. It states as under:

"Clause (v) of sub-section (2) of section 3 of the Environment

(Protection) Act, 1986 empowers the Central Government to

impose restrictions in the areas in which any industries, operations

or class of industries, operations or processes shall not be carried

out or shall be carried out subject to certain safeguards. In view of

recent pronouncements by the Supreme Court in certain public

interest litigation cases involving environmental issues, it was

considered necessary to set up an independent body for quick

redressal of public grievances. Consequently, an Ordinance was

promulgated providing for the establishment of a National

Environment Appellate Authority to deal with writ petitions,

complaints, representations or appeals against the grant of

environmental clearance to projects."

LPA 277/2009 Page 11 of 17

14. Section 11 of the Act, which is material for the purpose of this appeal, is reproduced hereinbelow:

"11. (1) Any person aggrieved by an order granting environmental

clearance in the areas in which any industries, operations or

processes or class of industries, operations and processes shall not

be carried out or shall be carried out subject to certain safeguards

may, within thirty days from the date of such order, prefer an

appeal to the Authority in such form as may be prescribed:

Provided that the Authority may entertain any appeal after the

expiry of the said period of thirty days but not after ninety days

from the date aforesaid if it is satisfied that the appellant was

prevented by sufficient cause from filing the appeal in time.

(2) For the purposes of sub-section (1), "person" means-

(a) any person who is likely to be affected by the grant of

environmental clearance;

(b) any person who owns or has control over the project with

respect to which an application has been submitted for

environmental clearance;

(c) any association of persons (whether incorporated or not)

likely to be affected by such order and functioning in the field

of environment;

(d) the Central Government, where the environmental

clearance is granted by the State Government and the State

Government, where the environmental clearance is granted

by the Central Government; or

(e) any local authority, any part of whose local limits is

within the neighbourhood of the area wherein the project is

proposed to be located."

15. On a plain reading of Section 11, it is seen that any person aggrieved by an order

granting environmental clearance has a right to prefer an appeal to the Authority and the

definition of „person‟ as contained in sub-section (2) of Section 11 at Clause (a) thereto

provides that any person who is likely to be affected by the grant of environmental

clearance has an undoubted locus standi to file an appeal. Section 11(2)(c) is worded

differently and is wider in scope than sub-clause (a). Sub-clause (c) speaks of

"association of persons" (whether incorporated or not) who are likely to be affected by

the impugned action and who work in the field of environment. In other words,

sub-clause (a) talks of those who are affected or are likely to be affected and the emphasis

is on the impact on an individual, though the sub-clause does not rule out more than one

person likely to be affected who are actually aggrieved. In contrast, sub-clause (c) refers

LPA 277/2009 Page 12 of 17

to an association of persons, particularly an incorporated one. Such association of

persons, particularly an incorporated association, cannot be said to be affected in the

manner traditionally understood. Moreover, in environmental cases the damage is not

necessarily confined to the local area where the industry is set up. The effect of

environmental pollution or environmental degradation might have far-reaching effects

going beyond the local area and might have national or global effects. For example, the

destruction of forests is said to be one of the causes leading to global warming.

Therefore, the aggrieved person need not be resident of the local area. Such an interpretation would also result in defeating the very objective of this enactment in terms of access to justice. As per the learned single Judge:

"....India, even today, lives largely in its villages. A project or

scheme, which is likely to affect or impact a remote community,

that may comprise even a cluster of villages, may or may not have

an "association of persons" who work in the field of environment.

The villagers, like most others, are unlikely to know about the

project clearance, or possess the wherewithal to question it,

through an appeal. If the third respondent‟s contention, and the

authority‟s impugned order were to be accepted, and upheld, such

community‟s right to appeal, meaningfully, would be rendered a

chimera, an illusion. In their case, the Act would be a cruel joke,

paying lip service, while promising access to justice, but in reality

depriving such a right....."

16. The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged (See J.M. Desai v. Roshan Kumar, AIR 1976 SC 578). In Bar Council of Maharashtra v. M.V. Dabholkar & Ors., (1975) 2 SCC 702, the Court held that the words "person aggrieved" are found in several statutes and the meaning will have to be ascertained with reference to the purpose and the provisions of the statute. It has been noticed in Ghulam Qadir v. Special Tribunal & Others, (supra) that the orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change and the constitutional courts have been adopting a liberal approach in dealing with the cases or the claims of litigants cannot be dislodged merely on hypertechnical grounds. In S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, the Constitution Bench held: LPA 277/2009 Page 13 of 17

"20. Now, as pointed out by Cappellatti in Volume III of his

classic work on "Access to Justice" at page 520, "The traditional

doctrine of standing (legitimatio ad causam) attributes the right to

sue either to the private individual who 'holds' the right which is in

need of judicial protection or in case of public rights, to the State

itself, which sues in courts through its organs". The principle

underlying the traditional rule of standing is that only the holder of

the right can sue and it is therefore, held in many jurisdictions that

since the State representing the public is the holder of the public

rights, it alone can sue for redress of public injury or vindication of

public interest. It is on this principle that in the United Kingdom,

the Attorney-General is entrusted with the function of enforcing

due observance of the law. The Attorney-General represents the

public interest in its entirety and as pointed out by S.A. de Smith in

"Judicial Review of Administrative Action" (Third edition) at page

403; "the general public has an interest in seeing that the law is

obeyed and for this purpose, the Attorney General represents the

public." There is, therefore, a machinery in the United Kingdom

for judicial redress for public injury and protection of social,

collective, what Cappellatti calls 'diffuse' rights and interests. We

have no such machinery here. We have undoubtedly an Attorney

General as also Advocates General in the States, but they do not

represent the public interest generally. They do so in a very limited

field; see Sections 91 and 92 of the Civil Procedure Code, But,

even if we had a provision empowering the Attorney General or

the Advocate General to take action for vindicating public interest,

I doubt very much whether it would be effective. The Attorney

General or the Advocate General would be too dependent upon the

political branches of Government to act as an advocate against

abuses which are frequently generated at least tolerated by political

and administrative bodies. Be that as it may, the fact remains that

we have no such institution in our country and we have therefore to

liberalise the rule of standing in order to provide judicial redress

for public injury arising from breach of public duty or from other

violation of the Constitution or the law. If public duties are to be

enforced and social collective 'diffused' rights and interests are to

be protected, we have to utilise the initiative and zeal of

public-minded persons and organisations by allowing them to

move the court and act for a general or group interest, even though

they may not be directly injured in their own rights. It is for this

reason that in public interest litigation -- litigation undertaken for

the purpose of redressing public injury, enforcing public duty,

protecting social, collective, 'diffused' rights and interests or

vindicating public interest, any citizen who is acting bona fide and

who has sufficient interest has to be accorded standing. What is

sufficient interest to give standing to a member of the public would

have to be determined by the Court in each individual case. It is

not possible for the Court to lay down any hard and fast rule or any

strait-jacket formula for the purpose of defining or delimiting

'sufficient interest', It has necessarily to be left to the discretion of

the Court. The reason is that in a modern complex society which is

seeking to bring about transformation of its social and economic

structure and trying to reach social justice to the vulnerable

sections of the people by creating new social, collective 'diffuse'

rights and interests and imposing new public duties on the State

and other public authorities, infinite number of situations are

bound to arise which cannot be imprisoned in a rigid mould or a

procrustean formula. The Judge who has the correct social

LPA 277/2009 Page 14 of 17

perspective and who is on the same wavelength as the Constitution

will be able to decide, without any difficulty and in consonance

with the constitutional objectives, whether a member of the public

moving the court in a particular case has sufficient interest to

initiate the action.

17. In Municipal Council, Ratlam v. Shri Vardichan & Ors., (1980) 4 SCC 162, Krishna Iyer, J. quoted with approval the following passage from Access to Justice by Cappelletti and B. Garth which reads thus:

"The recognition of this urgent need reflects a fundamental change

in the concept of "procedural justice".... The new attitude to

procedural justice reflects what Professor Adolf Homburger has

called "a radical change in the hierarchy of values served by civil

procedure"; the paramount concern is increasingly with "social

justice," i.e., with finding procedures which are conducive to the

pursuit and protection of the rights of ordinary people. While the

implications of this change are dramatic-for instance, insofar as the

role of the adjudicator is concerned-it is worth emphasizing at the

outset that the core values of the more traditional procedural justice

must be retained. "Access to justice" must encompass both forms

of procedural justice."

18. In M.C. Mehta (II) v. Union of India, (1988) 1 SCC 471, the Court observed:

"16. .....The petitioner in the case before us is no doubt not a

riparian owner. He is a person interested in protecting the lives of

the people who make use of the water flowing in the river Ganga

and his right to maintain the petition cannot be disputed. The

nuisance caused by the pollution of the river Ganga is a public

nuisance, which is wide spread in range and indiscriminate in its

effect and it would not be reasonable to expect any particular

person to take proceedings to stop it as distinct from the

community at large. The petition has been entertained as a Public

Interest Litigation. On the facts and in the circumstances of the

case we are of the view that the petitioner is entitled to move this

Court in order to enforce the statutory provisions which impose

duties on the municipal authorities and the Board constituted under

the Water Act...."

19. It is well settled that in construing remedial statute the courts ought to give to it widest operation which its language will permit. The words of such a statute must be so construed as to give the most complete remedy which the phraseology will permit, so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved. The statute being remedial in nature is given liberal construction to promote the beneficient object behind it. In Workman of American Express International Banking Corporation v. Management of American Express LPA 277/2009 Page 15 of 17 International Banking Corporation, (1985) 4 SCC 71, O. Chinnappa Reddy, J, speaking for the Court observed:

"The principles of statutory construction are well settled. Words occurring

in statutes of liberal import such as social welfare legislation and 'Human

Rights' legislation are not to be put in Procrustean beds or shrunk to

Liliputian dimensions. In construing these legislations the imposture of

literal construction must be avoided and the prodigality of its

mis-application must be recognised and reduced. Judges ought to be more

concerned with the 'colour', the 'content' and the 'context' of such statutes

(we have borrowed the words from Lord Wilberforce's opinion in Prenn v.

Simmonds). In the same opinion Lord Wilberforce pointed out that law is

not to be left behind in some island of literal interpretation but is to

enquire beyond the language, un-isolated from the matrix of facts in which

they are set; the law is not to be interpreted purely on internal linguistic

considerations. In one of the cases cited before us, that is, Surendra

Kumar Verma v. Central Government Industrial Tribunal cum-Labour

Court, we had occasion to say,

"Semantic luxuries are misplaced in the interpretation of

"bread and butter" statutes. Welfare statutes must, of

necessity, receive a broad interpretation. Where

legislation is designed to give relief against certain kinds

of mischief, the Court is not to make inroads by making

etymological excursions".

20. Insofar as the present case is concerned, it is seen that even in the impugned order, the Authority acknowledged that the first respondent had on several occasions in the past made representations before the Orissa Pollution Control Board challenging the holding of public hearing and that he could not attend the hearing due to personal reasons. The first respondent, though not participating in the public hearing, had presented his detailed objections before the Pollution Control Board against the holding of public hearing on the ground of faulty environmental impact assessment report. At one stage, his representations were found substantial by the authorities.

21. The organization of the first respondent is working in the area in question and has been closely following the issue of setting up of aluminium smelter plant. During various stages of the project it had complained to the second respondent about the alleged unauthorized construction at the project site, which later directed the appellant to stop such activities. In the circumstances it is not right to say that the first respondent is not an aggrieved person within the meaning of Section 11 of the Act. Denial of the right to appeal would virtually defeat the legislative intention of granting access to the expert LPA 277/2009 Page 16 of 17 appellate authority in the matter of grant of EIA. In our opinion, the appeal is devoid of any substance and the same is hereby dismissed with costs quantified at Rs.25,000/-.

CHIEF JUSTICE MANMOHAN, J SEPTEMBER 14, 2009 pk LPA 277/2009 Page 17 of 17