SRIDEVI DATLA v. UNION OF INDIA REP. ...

Item No.1: -

BEFORE THE NATIONAL GREEN TRIBUNAL

SOUTHERN ZONE, CHENNAI

Appeal No. 18 of 2020 (SZ)

(Through Video Conference)

IN THE MATTER OF

Sridevi Datla Aged about 47 years, W/o DRSS Kumar Varma, R/o Door No. 10-37-11, Ramanagar, Vishakhapatnam - 530 002, Andhra Pradesh. ...Appellant(s)

Versus

1. Union of India Through the Secretary, Ministry of Environment Forest and Climate Change, Indira Paryavaran Bhawan,

Jor Bagh, New Delhi- 110 003.

2. State of Andhra Pradesh, Through its Chief Secretary, Secretariat Buildings, Hyderabad

3. Andhra Pradesh Pollution Control Board, Through the Member Secretary, D. No. 33-26-14D/2,

Near Sunrise Hospital, Pushpa Hotel Centre, Chalamvari Street, Kasturibaipet, Vijayawada- 520 008. Andhra Pradesh

4. M/s Bhogapuram International Airport Corporation Ltd, Through the Managing Director,

1^stFloor, FDC Complex,

AC Guards,

Hyderabad- 500 028.

5. GMR Vishakhapatnam International Airport Ltd., Reg. office at 10-1-43,

Flat No. 2020, Second Floor,

Siripuram Fort, Siripuram,

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Vishakhapatnam- 530 003. Andhra Pradesh.

(Impleaded as additional 5^th Respondent as per Order dt.08.06.2021 in I.A. No.82/2021) … Respondent(s)

For Appellant(s): Mr. Ritwick Dutta, Mr. Rahul Choudhary and

Mr. G. Stanley Hebzon Singh.

For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1. Mr. Atmaram N.S. Nadkarni Senior Adv.

along with Mrs. Madhuri Donti Reddy,

Mr. Salvador Santosh Rebello and

Mr. Gauravvardhan Nadkarni for R2 to R4. Mr. Parag P. Tripathi, Senior Adv. along with Mr. Anirudh Krishnan and

Mr. Shiva K. for R5.

Earlier Judgment Reserved on: 03^rd September, 2021. Case Reopened on: 29^th October, 2021. Judgment Reserved on: 01^st November, 2021. Judgment Pronounced on: 09^th December, 2021.

CORAM:

HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER

Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No

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JUDGMENT

Delivered by Justice K. Ramakrishnan, Judicial Member.

1. The above appeal has been filed against the grant of Environmental Clearance (EC) granted to the 4^threspondent by the 1^strespondent for establishing a Greenfield International Airport at Tehsil Bhogapuram, District Vizianagaram, Andhra Pradesh as per proceedings No. F. No.10-21/2016-IA.III dated 14.08.2017.

2. According to the appellant, the environment clearance was vitiated for several technical as well as legal grounds. According to the appellant, she is also one of the persons, who is affected by the acquisition of land acquired for this purpose in respect of which a Writ Petitions have been filed by several persons including the appellant before the Hon"ble High Court of Telengana and the Hon"ble High Court by order dated 25.01.2016 in WPMP No. 42434 of 2015 in W.P. No. 32879 of 2015 granted stay of dispossession of the land during the pendency of the Writ Petitions.

3. When State of Andhra Pradesh was divided into State of Andhra Pradesh and State of Telengana, they intended to have a new airport in the present place for which huge extent of land was acquired. They intended to develop 2004.52 acres (811.21 ha) for this purpose and the projects site fall within the jurisdiction of six villages, namely, Amatam Ravivalasa, Savaravilli, Gudepuvalasa, Kancheru, Kavulavada and Ravada.

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4. 4^threspondent had suppressed the material facts in Form-I application. The said project of airport is a part of larger project, namely, „Bhogapuram Aerotroplis Project" which is being developed by the project proponent themselves and as per G.O dated 20.05.2015, the State of Andhra Pradesh had created SPV named Bhogapuram International Airport Corporation Ltd.(4^threspondent) to develop Greenfield Aerotroplis project which will include international airport, MRO facilities and aviation academy at Bhogapuram. The same was clearly mentioned on the website of the project proponent. As per the news report, the said project will be developed within an area of 15,000 acres but however, they have concealed this fact in Form I application and only mentioned that they require only 2004.52 acres.

5. Further, they have failed to disclose the fact that airport is part of an inter-linked other projects of development but in Form I they have mentioned that it was not part of inter-linked project and no application have been filed in respect of inter-linked projects. It is against annexure-A2 notification issued by the State of Andhra Pradesh in respect of this project. Further, they have also suppressed the fact of pendency of several Writ Petitions and Interlocutory orders passed before the Hon"ble High Court of Andhra Pradesh in respect of this acquisition proceedings and in serial no. 24 under basic information, they have categorically stated that there was no litigation pending against the project and/or the land in which the project is proposed to be setup. In fact by virtue of the common

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interim order passed in one of the Writ Petitions pending before the Hon"ble High Court of Andhra Pradesh and Telengana at Hyderabad dated 25.01.2016 filed by Kakarlapudi Satyanarayana Raju & Ors vs. State of Andhra Pradesh & Ors and several connected Writ Petitions, stay of dispossession of the petitioners from the land was ordered as the notification for acquisition of land for this purpose issued under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was challenged evidenced by annexure-A3. These aspects were intentionally suppressed by the 4^threspondent in annexure-A4 Form I application.

6. As per para 8(vi) of EIA Notification, 2006, if any, "deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environment clearance granted on that basis". So, according to the appellant, on account of this ground, the same is liable to be set aside.

7. Further, the baseline study was conducted before the Terms of Reference was issued to the project proponent. In fact the project proponent submitted the application for issuance of Terms of Reference along with Form I application and draft ToR by making an online application on the website of the 1^strespondent-Ministry on 27.02.2016 and the proposal number allotted was IA/AP/MIS/50659/2016. The Expert Appraisal Committee (Infra 2) in their 4^thmeeting held on 28^th-29^thMarch, 2016, they approved the

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Terms of Reference submitted by the project proponent and issued ToR with 16 conditions to be fulfilled. On that basis, 1^strespondent had issued the Terms of Reference to the project proponent along with their letter dated 04.05.2016 for the purpose of conducting EIA study. As per EIA Notification, the study will have to be conducted within 30 days of receipt of the Terms of Reference. So according to the appellant, the 4^threspondent can start their Environment Impact Assessment study only after 05.05.2016.

8. On the other hand, they have conducted the study even prior to the issuance of environment clearance and submitted the application for environment clearance along with EIA report, even prior to that. Further, the study was conducted prior to the ToR issued and as such the same is not valid in law. Further, they are expected to conduct a study within a distance of 10 km radius along the project boundary on different environmental issues like, water, land, air, ecology, noise, socio-economic issues etc. and all these things ought to have been conducted only after the issuance of ToR and material collected prior to issuance of ToR cannot be considered for this purpose as in this case, the baseline data was collected for summer season, namely, March, 2016 to May, 2016 which was prior to the issuance of the Terms of Reference.

9. Further, the Environment Impact Assessment conducted was inadequate and faulty and it does not comply with the Terms of Reference. They have omitted to mention details of the eco-sensitive sites within the study area but they have only mentioned about the

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eco-sensitive zone within 10 km region and they have not complied with study within 15 km aerial distance. They have not mentioned about the existence of water bodies, eco-sensitive zones like forest, national parks etc. within the aerial distance of 15 km. They have also not mentioned about the existence of human-made eco-sensitive zones like schools, hospitals etc. even with the 10 km region.

10. They have not properly conducted the noise impact study and in fact the noise impact study conducted did not show the impact of noise in the funnel area of the flight path which as per the Terms of Reference has to be conducted. It is also not in tune with the guidelines given in the Central Pollution Control Board in respect of airport projects. Further the levels of noise noted in the EIA report do not reflect the real impact of the noise in those areas. They have also not mentioned about the water requirement and also the source from where they are going to collect the water. The water diagram given by them is faulty and misleading and that does not give the actual quantity of water required and also the impact of use of so much water in that area.

11. They have also not mentioned about the rehabilitation and re- settlement of project affected persons which they are expected to provide especially when large scale acquisition is made affecting the livelihood of people in that area. They have also not mentioned about the rehabilitation process that they anticipate to meet the socio- economic necessity of vulnerable group of people like schedule castes and schedule tribes in that area. The socio-economic study and Rehabilitation and Resettlement Plan are also faulty and it is not in

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tune with the direction given by this Tribunal in M.P Patil vs. Union of India & Ors.¹vide judgement dated 13.03.2014 of the National Green Tribunal. It is also not in tune with the provisions of LAAR Act, 2013 in respect of land acquisition and it is subjudice as Writ Petitions are pending before the Hon"ble High Court of Andhra Pradesh and Telengana at Hyderabad.

12. The baseline data collected by the company, namely, M/s Envirotech East Pvt. Ltd, Kolkata is not an accredited agency with Quality Control of India/NABET for airport projects and as per Terms of Reference dated 04.05.2016, it has to be conducted by an accredited agency recognised by those institutions. The Expert Appraisal Committee as well as MoEF&CC also had not applied their mind in assessing the impact of the project in the project area and no reasons were given by Expert Appraisal Committee for recommending the project on the basis of the presentation made by the project proponent.

13. They have also not considered the views of the public raised in the public hearing and nothing has been mentioned as how those aspects have been considered by the Expert Appraisal Committee that will also go to show that there is non-application of mind as has been observed by the National Green Tribunal in Samta vs. Union of India and Ors.².

14. Further it was mentioned in the environment clearance and also in the recommendations of the Expert Appraisal Committee that the Public hearing was conducted by Maharashtra State Pollution Control Board

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which in fact was incorrect as it was conducted by Andhra Pradesh Pollution Control Board. Further in several places instead of Bhogapuram Airport, they have mentioned Kurnool Airport which shows the manner in which EIA report was prepared by applying cut and paste or copy-paste method and it was not properly prepared and this aspect has not been properly considered by the Expert Appraisal Committee as well. That shows the non-application of mind by the recommending authority as well as the issuing authority.

15. Further, the project was recommended in a hasty manner and large number of items were included in the agenda of the meeting of the Expert Appraisal Committee which considered this project and there is no possibility of proper appreciation and application of mind by the members of the Appraisal Committee and they will not be getting proper time also for proper understanding and evaluation of the project in the right perspective of approval. This practice of including large number of projects which requires deeper study and considering the same without proper application of mind was held to be a ground for setting aside the environment clearance in Sreeranganathan K P vs. Union of India & Ors.³which dealt with the Greenfield airport in Kerala. Further, there was violation of Greenfield airport policy of Ministry of Civil Aviation and as per the same no airport is expected to come within an aerial distance of 150 km. In fact Vishakhapatnam International Airport is situated within a distance of 56 km and as such the proposal of establishing another airport in Vizianagaram is against

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the airport policy which has not been properly understood by the authorities. Recently huge amount was spent by the authorities for expansion of Vishakhapatnam Airport and the financial and economical feasibility of establishing another airport within such a short distance has not been properly considered by the authorities.

16. Subsequently, the appellant had amended the appeal memorandum on the basis of the information collected by him that the manufacturer of Airbus 380 was stopped and this present airport was intended for operation of such airbus and as such there was no necessity for establishment of airport on account of the subsequent development occurred. This ground was added by amending the grounds of appeal as per order in I.A. No. 114/2021 dated 10.08.2021.

17. Further, additional 5^threspondent who got impleaded by themselves as being the persons to whom the contract of executing the work was granted as per order in I.A. No. 82 of 2021 dated 08.06.2021.

18. 1^strespondent filed counter affidavit contending that the appeal is not maintainable. The grounds alleged are not sufficient to set aside the environment clearance granted. They have explained the method by which the process for issuing of environment clearance is dealt with by the MoEF&CC and SEIAA as per the provisions of the EIA Notification, 2006. They contended that the project proponent- M/s Bhogapuram International Airport Corporation Ltd (4^threspondent) through the Managing Director applied for Terms of Reference to the 1^strespondent vide proposal no. IA/AP.MIS/50659/2016 dated27.02.2016 for development of Greenfield International Airport at

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Bhogapuram, District, Vizianagaram, Andhra Pradesh. The Expert Appraisal Committee (Infrastructure-II) in its 4^thmeeting held on 28^th- 29^thMarch, 2016 appraised the project and recommended the ToR along for preparation of EIA/EMP report for the above mentioned projection in addition to all the relevant information as per „Generic Structure of EIA" given in Appendix III and IIIA in the EIA Notification, 2006. The draft EIA/EMP report shall be submitted to the State Pollution Control Board for public hearing. The issues emerged and response to the issues shall be incorporated in the EIA report. The copy of the ToR letter along with ToR dated 04.05.2016 is produced as annexure-R1 along with the counter.

19. The public hearing was conducted on 11.01.2017 at 11:00 AM at the project site in Bhogapuram Mandal, Vizianagram District, Andhra Pradesh wherein all issues raised by the concerned persons had been addressed. As per EIA report submitted by the project proponent the issues raised during the public hearing, the response thereto by the concerned persons and necessary action to be taken, if any, pursuant to the issues raised were dealt with. Further, in respect of the issues which were not satisfactorily addressed according to the Expert Appraisal Committee by the project proponent, they were directed to submit a revised response. The revised response was accordingly submitted by the project proponent vide letter dated 14.04.2017 which was duly appraised by the Expert Appraisal Committee. The project proponent vide online proposal no. IA/AP/MIS/50659/2016 had applied on 20.02.2017 for grant of environment clearance to the 1^st

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respondent. The proposal has been discussed and appraised by the Expert Appraisal Committee (Infrastructure -II) in its 15^thmeeting held on 12-14 April, 2017. The Expert Appraisal Committee after detailed deliberations, during the 4^thmeeting recommended the project for grant of environment clearance with specific and general conditions evidenced by the minutes of the Expert Appraisal Committee produced as annexure-R2 along with the counter.

20. During public hearing, many issues were raised by the concerned persons like such as social economy regarding employment etc. the same has been mentioned in EIA report and has been duly considered by the Expert Appraisal Committee. The 1^strespondent, upon recommendation of the Expert Appraisal Committee, has granted environment clearance vide letter dated 14.08.2017 to the 4^th respondent subject to stipulation of various environmental safeguards which interalia included the following:

"1. The Environment Clearance is subject to final order of the Hon'ble High Court of Judicature at Hyderabad in W.P. Nos. 34090, 32879, 32956 and 33034 of 2015.

2. PP shall obtain clearance from DGCA and AAI for safety and project facilities.

3. The Land acquisition /purchase shall be in conformity to the LARR Act, 2013 and any other laws and regulations governing land acquisition.

4. Soil and other construction materials should be sprayed with water prior to any loading, unloading or transfer operation so as to maintain the dusty material wet.

5. The soil/construction materials carried by the vehicle should be covered by impervious sheeting to ensure that the dusty materials do not leak from the vehicle.

6. The excavation working area should be sprayed with water after operation so as to maintain the entire surface wet.

7. A detailed drainage plan for rain water shall be drawn up and implemented. 8.Ground water shall not be abstracted during the construction and operation phases. Drinking water shall be obtained fromMunicipal sources. Water conservation measures such as rain water harvesting and using treated water from the STP will be applied to minimize the use of fresh water.

9. Ground water abstraction and rain water recharge shall be as may be prescribed by the CGWA. A clearance of the CGWA shall be obtained in this regards.

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10. Noise from vehicles and power machinery and equipment onsite should not exceed the prescribed limit. Equipment should be regularly serviced. Attention should also be given to muffler maintenance and enclosure of noisy equipments.

11. Where construction activity is likely to cause noise nuisance to nearby residents, restrict operation hours between 7 am to 6 pm.

12. Solid inert waste found on construction sites consists of building rubble, demolition material, concrete; bricks, timber, plastic, glass, metals, bitumen etc shall be reused recycled or disposed off as per Solid Waste Management Rule, 2016 and Construction and Demolition Waste Rules, 2016.

13. Diesel power generating sets proposed as source of backup power for elevators and common area illumination during operation phase should be of enclosed type and conform to rules made under the Environment (Protection) Act, 1986. The height of stack of DG sets should be equal to the height needed for the combined capacity of all proposed DG sets. Use of low sulphur diesel. The location of the DG sets may be decided with in consultation with State Pollution Control Board.

14. Aircraft maintenance, sensitivity of the location where activities are undertaken, and control of runoff of potential contaminants, chemicals etc shall be properly implemented and reported.

15. Proper drainage systems, emergency containment in the event of a major spill during monsoon season etc shall be provided.

16. The runoff from paved structures like Runways, Taxiways, can be routed through drains to oil separation tanks and sedimentation basins before being discharged into rainwater harvesting structures.

17. Storm water drains are to be built for discharging storm water from the air- field to avoid flooding/water logging in project area during monsoon season / cloud bursts.

18. Rainwater harvesting for roof run-off and surface run-off, as plan submitted should be implemented. Before recharging the surface run off, pre- treatment must be done to remove suspended matter, oil and grease.

19. Total fresh water requirement from Vizianagaram Municipal Corporation shall not exceed 872.5 KLD.

20. Wastewater generation shall not exceed 1,152.3 KLDand treated in the STP. Treated sewage shall be recycled/reused for cooling tower make up, flushing and horticulture.

21. Acoustic enclosures for DG sets, noise barriers for ground-run bays, ear plugs for operating personnel shall be implemented as mitigation measures for noise impact due to ground sources.

22. During airport operation period, noise should be controlled to ensure that it does not exceed the prescribed standards. During night time the noise levels measured at the boundary of the building shall be restricted to the permissible levels to comply with the prevalent regulations. A monitoring station for ambient air and noise levels shall be provided in the village nearest to the airport.

23. The solid wastes shall be segregated as per the norms of the Solid Waste Management Rules, 2016. Recycling of wastes such as paper, glass (produced from terminals and aircraft caterers), metal (at aircraft maintenance site), plastics (from aircrafts, terminals and offices), wood, waste oil and solvents (from maintenance and engineering operations), kitchen wastes and vegetable oils (from caterers) shall be carried out.

24. Traffic congestion near the entry and exit points from the roads adjoining the Airport shall be avoided. Parking should be fully internalized and no public space should be utilized.

25. Compliance with conditions stipulated at Annexure XIV of the amended EIA notification of 09.12.2016 and seek the approval of the CGWA before any dewatering for basements.

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26. An onsite disaster management plan shall be drawn up to account for risks and accidents. This onsite plan shall be dovetailed with the onsite management plan for the district.

27. The concerns of the Public hearing panel shall be suitably addressed to and the recommendations adopted as part of the Environmental Management Plan and in the plan for C.S.R. as applicable.

28. A water security plan to the satisfaction of the CGWA shall be drawn up to include augmenting water supply and sanitation facilities and recharge of ground water in at least two villages and schools, as part of the C.S.R. activities."

21. The copy of the environment clearance dated 14.08.2017 was produced as annexure-R3 along with the counter. The project proponent is under obligation to comply with the specific conditions as well as general conditions imposed. The compliance of the same will be assessed and evaluated by the concerned authorities at the State and Central level. They have to submit the status compliance report every six months which will be published on the website and monitored by the Ministry. If there is any non-compliance of the environment clearance conditions, effective action in accordance with law will be taken by the competent authorities against the project proponent. The environment clearance was granted after complying with all the formalities and provisions of EIA Notification, 2006.

22. Ministry had issued an office memorandum no. J-11013/41/2006- IA.II(I) dated 05.10.2011 in respect of the ownership of EIA report and other documents by the project proponent wherein it has been clarified that the EIA reports are prepared by the environmental consultants contains information/data copied from other reports as it may be time consuming for Ministry and/or the Expert Appraisal Committee to compare the contents of the one report with the other to check for copied data/information, the onus of submitting the correct and

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factual information/data contained in the EIA report lies with the project proponent and the copy of the Office Memorandum dated 05.10.2011 was produced as annexure-R4 along with the counter. According to the 1^strespondent the environment clearance was granted after due compliance with the provisions of Environment (Protection) Act, 1986 and EIA Notification, 2006. They prayed for passing appropriate orders accepting their contentions.

23. 2^ndrespondent filed their counter affidavit denying the allegations made in the appeal memorandum regarding the alleged illegality in granting environment clearance and also denied the grounds of appeal on the basis of which they challenged the validity of environment clearance. It is only an attempt to put a road block for development activities in State of Andhra Pradesh that the present appeal has been filed.

24. The Present airport project is of national importance which also plays a vital role in the economic and financial growth of the State of Andhra Pradesh. The Expert Appraisal Committee as well as MoEF&CC have considered the entire project on the basis of the documents produced and considered the technical and environmental issues and only thereafter, they granted environment clearance which did not call for any interference.

25. After the preparatory phase of airport project including the acquisition of the land for the said project, creation of the requisite SPV- M/s Bhogapuram International Airport Corporation ltd. currently known as Andhra Pradesh Airports Development Corporation Ltd issued the

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RFQ for inviting bids, issuance of tender etc for the said project. The successful bidder/consortium which has been entrusted with the project implementation now and the role of the State of Andhra Pradesh was restricted only to the said preparatory phase and acquisition of requisite land for the project. The State of Andhra Pradesh was not party to the proceedings and events relating to grant of environment clearance.

26. The State of Andhra Pradesh (Infrastructure Corporation of Andhra Pradesh) appointed RITES India to prepare a techno-economic feasibility study for development of Greenfield International Airport at Bhogapuram district, Vizianagaram vide letter no. INCAP(AP)Dev of Airports/Consultancy services/M/S RITES/130/2015 dated 02.12.2015. After a thorough study, keeping in consideration of all the environmental issues and evaluation by M/s RITES, it was decided that the State of Andhra Pradesh will initiate the airport project after obtaining all the requisite permission and land required for the same. It was also concluded that a total area of 2200 acres approximately would be required for the airport project which area would include airport and facilities such as the maintenance, repair and overhaul (MRO) and the aviation academy. Accordingly, while finalising the land required for the airport project (as detailed in subsequent paragraphs), the State of Andhra Pradesh earmarked the said area of land for the airport project. The G.O dated 20.05.2015 appointing special purpose vehicle named Bhogapuram International Airport

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Corporation Limited was produced as annexure R1 along with the counter.

27. The airport project by State of Andhra Pradesh was an area where minimum acquisition was required to be done. In the present case, the State of Andhra Pradesh only has to acquire 1332.52 acres of private land while the remaining land already belongs to and is in the possession of the State only. The various litigations have been filed by various land owners challenging the acquisition and few petitions are pending before the Hon"ble High Court of Judicature at Vijayawada for the State of Andhra Pradesh. Out of the total area of 1332.52 acres, which constitutes the private land, approximately 93.32% of land i.e. about 1243.52 acres has already been acquired by the State of Andhra Pradesh. Out of the total 457 petitioners before the Hon"ble High Court, about 432 petitioners have duly accepted the compensation being paid to them for their respective lands and these petitioners have already handed over their respective lands to the State of Andhra Pradesh.

28. The State of Andhra Pradesh has the obligation of acquisition of the requisite land for the project and handover to the 4^threspondent. So they acquire the land and made payment of about Rs. 663 crores till date as in the form of payment to the land owners. They have not involved in the day to day activities carried out at the project site, the pre-feasibility report and the Environment Impact Assessment report etc which were prepared by the project professionals in the field as engaged by the 4^threspondent.

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29. They given the details of events regarding the decision taken for establishment of the airport and its acquisition proceedings etc on date-wise chronology order as below:

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30. They have also highlighted the necessity in the background for establishing the new airport at Bhogapuram as follows:

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31. According to them, there is no material concealment of facts regarding the litigations as they are not the authority who prepared the Form-I application. It is not an interlinked project, it comprises of an international airport, maintenance, repair and overhaul and an aviation academy and the said facilities and academy are however to be developed at the instant of the project proponent at a later stage as phase-II and it is part of the same project and not a different project and everything was cumulatively assessed for the purpose of EIA report and it was appraised by the authorities. The present project will be developed on an about 2004.52 acres of land and the allegation that they propose to acquire 15,000 acres is not correct. Out of the private land proposed to be acquired, namely, 1332.52 acres an extent of 1243.52 acres was surrendered by the persons and the balance extent to be surrendered is only 89 acres and there is no further proceeding for acquisition of land is required.

32. The baseline data was prepared by the project proponent on the basis of the ToR issued and in tune with the EIA Notification, 2006. The baseline data was prepared prior to the issuance of ToR on the basis of the notification issued by the Ministry as S.O. NO. 996(E) dated 10.04.2015 evidenced by annexure R15 produced along with the counter. They also produced annexure R14 series undertaking given by some of the petitioners before the Hon"ble High Court of Andhra Pradesh challenging the acquisition proceedings agreeing to accept the compensation and handed over possession and undertaking to withdraw Writ Petition filed by them in this regard. All necessary

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details required for preparing the EIA report was furnished by the project proponent.

33. The allegation that there was no proper application of mind by the Expert Appraisal Committee is also not correct as the discussion in the EAC meeting will go to show that there was proper application of mind. The violation regarding Greenfield International Airport Policy of Ministry of Civil Aviation is also not correct as the Civil Aviation Ministry has accorded permission for establishment of the same after considering the necessity for this project. The copy of the Greenfield Airport Policy was produced as annexure R-16 along with the reply.

34. The existing Vishakhapatnam Airport is a naval base airport and there are lot of restrictions regarding user of the same for civil aviation purpose. Further there was no land available for expansion of the airport considering the necessity of providing a comprehensive airport for development of newly formed State of Andhra Pradesh. That is the reason why the Civil Aviation Ministry had granted permission to establish this airport within the distance of 56 km from the existing Vishakhapatnam Airport. None of the grounds raised by the appellant are sufficient to set aside the environment clearance granted. So they prayed for dismissal of the application.

35. 3^rdrespondent also filed counter contending that how they have conducted the public hearing and denied the allegations made regarding the inadequacy of the public hearing conducted.

36. 4^threspondent filed detailed counter affidavit contending that the appeal is not maintainable. None of the grounds alleged are sufficient

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to set aside the environment clearance granted. The appellant had no bonafide in filing the appeal against the environment clearance as she had already challenged the land acquisition proceedings initiated by the State of Andhra Pradesh for this purpose before the Hon"ble High Court of Andhra Pradesh along with some other persons. They also more or less reiterated the necessity for establishing the new Greenfield Airport in this area as explained by the State of Andhra Pradesh in their counter statement. They denied the allegation that for the purpose of airport and interlinking projects, they are about to acquire 15,000 acres of land. There is no basis for such assumption by the appellant and they were relying on some newspaper reports for this purpose. In fact the total land acquired for this purpose is 1332.52 acres of Patta land and the remaining land belong to the State of Andhra Pradesh. The total land earmarked for the said project including Phase I, Phase II and Phase III as well as MRO and aviation academy is 2203.26 acres approximately.

37. The State of Andhra Pradesh was very much concerned about the environment and environmental issues and having due regard to this, pre-feasibility report was carried out and only after considering the pre-feasibility report and all other material aspects, the State of Andhra Pradesh decided to go ahead with the airport project. The State of Andhra Pradesh need new airport and it was recognised by the State of Andhra Pradesh to help, provide a reliable and seamless air connectivity to regional, national and international destination and to make the State of Andhra Pradesh a perfect destination for

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investment in aviation and allied business by creating airports as „ups"

for economic activity. It was aimed at boosting State economy via tourism and overall development of the region. The area in question comprises of famous temples and on account of which, the region is the most important pilgrimage centres as considered by many not only all over India but across the world. Some of these areas and sites are top places of religious and spiritual attraction which are visited by many people across the globe. Considering these aspects and also considering the difficulty experienced by them, they have selected this area which was earlier shortlisted for aerodrome for this project. After bifurcation of erstwhile Andhra Pradesh into two States, namely, State of Telengana and State of Andhra Pradesh initiatives were taken by State Government to improve their infrastructure and other facilities for facilitating socio-economic development and growth. The direct employment during operation phase in the proposed project will be about 4000 people and indirect employment will be around 7,500 to 10,000 people who will be employed in various allied services. During construction phase 2,000 to 2,500 labours and supervisors will be employed in various construction, transportation and storage activities. They have formed this Corporation originally as Bhogapuram International Airport Corporation Ltd on 31.05.2015 as part of Department of Infrastructure and Investment and issued a notification as G.O RT No. 63 dated 20.05.2015 for this purpose evidenced by annexure R-1 produced along with the counter.

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38. Prior to the selection of Bhogapuram, various alternate sites were studied and considered. Airport Authority of India in 2007-08 studied four sites i.e, Sabbavaram, Atchutampuram, Bhogapuram and Koruprolu (S. Rayvaram) out of which shortlisted site near Koruprolu (S. Rayvaram) was found suitable for proposed development. The project site being equidistant from Vishakhampatnam and Vizianagaram, so this was shortlisted and identified for the project for following reasons taking into account the public interest:

a.minimizing land acquisition cost and utilization of maximum Govenment land,

b.avoiding approved residential layouts, education institutes, resorts, forest land, estuary, river with back water, mangroves, c. does not fall withing ecologically sensitive zone and coastal regulation zone area.

39. Originally, it was intended for naval aerodrome (military purposes) as it was then found to be inappropriate site for having an aerodrome. They conducted apart from pre-feasibility study, a hydrological study through Hydrology Department of Andhra University,

Vishakhapatnam and had taken account of Coastal Regulation Zone areas including all relevant and material aspects as are required while doing a Government project of such magnitude and importance. The said hydrology report confirms that the nearest point of proposed airport from the high tide line or coastal line was at a minimum distance of 671 meters and as such there will not be any effect on coastal environment. The selected site was confirmed vide notice of Ministry of Civil Aviation no. AV.20015/1112015/AD dated 27.01.2016 evidenced by annexure R-2 produced along with the counter affidavit.

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40. After the site clearance by Ministry of Civil Aviation, pre-feasibility report for development of Bhogapuram International Airport was prepared by the GreencIndia Consulting Pvt Ltd, an environmental consultant duly accredited with Quality Council of India (NABET- QCI) since 2010. For the purpose of establishing such International Airport, they will have to do the project in different phases in airport expansion project, approach road, MRO, aviation academy etc. when all these matters were placed before the State Government, they have decided to proceed with the airport project over an area of 2004.52 acres approximately of the land being the project site along with the approach road having 119 plus 80 acres of land for other purposes.

41. The project site lies on the border of Visakhapatnam and Vizianagaram districts in East-West direction, East of NH-5 and West of sea coast. The project site is approximately 45 kms from Visakhapatnam in north east direction through NH-5 and 25 kms from Vizianagaram in south east directon via NH-43. The approach to the site is though four-lane NH-5. The site has Bay of Bengal on the east side which is about 1.5 km from the eastern boundary of the site and NH-5 is about 1.5 from the western boundary of the site. They gave the details of the land type which was intended to acquire for this project as follows:

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42. This will go to show that the project site does not comprise any forest land or any eco-sensitive zones. Out of the total extent of the land, the patta land is 1332.52 acres and Government land is 671.50 acres and approximately 848 crore rupees have been paid for this project and transferred to the account of District Collector, Vizianagaram.

43. After obtaining environment clearance, request for qualification dated July, 2018 was issued to develop the project as PPP project evidenced by annexure R-3 produced along with the counter. The project expected to handle 6 million passengers per annum in phase-I, 12 million passengers per annum in phase-II and 18 million passenger per annum in phase-III. The scope of the Bhogapuram Airport project is limited only to an airport which is evident from the G.O. Ms. 18 dated 30.03.2020 produced as annexure-R-4. Accordingly they have floated global tenders for international bidding and 5^threspondent is selected as the highest bidder and Concession Agreement was executed with 5^threspondent on 12.06.2020.

44. The Chronological events starting from the idea of establishing airport, culminating in environment clearance and other infrastructure facilities were detailed as follows:

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45. They applied for ToR and the same was granted and thereafter Environment Impact Study was conducted and EIA report and EMP were prepared and submitted for granting environment clearance and after appraisal by the Expert Appraisal Committee, they recommended the same and ultimately the impugned environment

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clearance was granted. They have complied with all the necessary direction and it was in tune with the provisions provided under the EIA Notification, 2006. They have given the details of land acquired for the airport project as follows:

46. Apart from this, they required 119 acres of land for approach roads. They are now only intended to design the project as phase-I to satisfy the demand of 6 million passengers per annum. Phase-II and Phase-III of the project would be designed and developed once the passenger traffic increases and to meet the demand for 12 million passengers per annum and 18 million passengers per annum respectively. The other facilities which are part and parcel of the project i.e. MRO and aviation academy could also be developed subsequently in Phase II and III once the air traffic, number of airplanes etc increase. They do not require any excess land other than the land now earmarked for this purpose for the entire project.

47. MRO is required for the purpose of due maintenance, repair and overhauls of the aircrafts and academy is required for the purpose of providing training to the air staff such as pilots, air-hostess etc. The airports at Hyderabad and Delhi are having such facilities and such facilities would be developed in the Phase II and III of the project if

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need arises on account of the increase in air and passenger traffic. All these things were discussed in Chapter 2 of the EIA report. Even before issuing ToR, the pendency of the Writ Petitions including W.P No.4768 of 2012, WP (MP) No. 11695 in W.P. No. 9250 of 2012 and also orders passed by the Hon"ble High Court of Andhra Pradesh were brought to the notice of the Expert Appraisal Committee and included in the land documents. A presentation was made on 28.03.2016 in this regard and the copy of the presentation was produced as annexure R-8 along with the counter.

48. If the pendency of the litigations were suppressed, there is no possibility of including these aspects in the special conditions in ToR dated 04.05.2016 evidenced by annexure R-9 produced along with the counter. There was no wilful or deliberate omission or suppression of fact as alleged. They have conducted the baseline studies on the basis of the guidelines issued by the MoEF&CC in this regard. They have started the baseline study only after 30 days from date of submission of Form-I. The baseline data was collected in compliance with the standard ToR specified by MoEF&CC and EIA Airport Manual. This was also in view of the amendment to para 7 of the EIA notification in terms of G.O. No. 996 of 2015 which provides deemed approval of ToR which reads as follows:

"Standard ToR developed by the Ministry in consultation with the sector specific Expert Appraisal Committees shall be deemed approved TOR for the projects or activities".

49. The said notification does not mandate that baseline study should be conducted after express approval of ToR. Such an interpretation

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defeats the provision of deemed approval as provided under the amended notification. The Expert Appraisal Committee had directed the identification of environmental sensitive places only within 10 km and it is on that basis, the impact assessment study was conducted.

50. As per EIA Airport Manual, study area is an area 10 km around its boundary and as per Section 2.1 of Airport Manual the following details were shown:

 A map of the study area (project area and area 10 km around its boundar) delineating the major topgraphical features such as land use, drainage, a location of habitats is to be given. Major constructions including roads, railways, pipelines, major industries if any in the area are to be marked clearly.

 A map of the study area covering aerial distance of 15 km from the proposed project boundary delineating environmental sensitive areas as specified in Form 1 of EIA notification 2006 as amended 2009 is to be shown.

51. Accordingly, they have prepared the study area of 10 km radius of land use and environmental sensitive area within 15 km radius and it is on that basis ToR was issued for airport project. They have conducted the study on the basis of the ToR issued. In para 4.1 of EIA Airport Manual in Chapter 4 reads as follows:

Primary data through measurements and field surveys: and secondary data from secondary sources are to be collected in the study area within 10 km radius from Aerodrome Reference Point (ARP). Primary data should cover one season other than monsoon and secondary data is to cover one full year. The basis for selection of these criteria is that the aircraft gains a height of 1000 ft in this area below which noise and air pollution are generated maximum during its take off stage. Secondary data should be collected within 15 km aerial distance for the parameters as specifically mentioned at column 9(III) of Form I of EIA Notification,

2006.

52. They conducted the study on the basis on the above provisions. The allegations that there was inadequate noise impact study conducted are not correct. They have conducted the noise impact study on the basis of the EIA Notification, 2006, EIA Airport Manual and also on

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the basis of the CPCB guidelines in this regard. As per EIA Airport Manual approach funnel is defined as "a specified airspace around a nominal approach path within which an aircraft approaching to land is considered to be making a normal approach". The actual arrival and departure flight paths will be defined by Air Navigation Service Provider as per DGCA requirements once the runway is ready with navigational instruments and procedures. EIA report (page 2-3) figure2.3 and table 2.2 clearly indicate the runway orientation (which one end is 100 degree and other end 280 degree).

53. The importance of monitoring in the flight path and funnel as stated in EIA Airport Manual is that "the basis of selection of these criteria is that the aircraft gains a height of 1000 ft in this area below which noise and air pollution are generated maximum during its take off stage".

The funnel area is only for landing and take-off at the end of the runways and is not applicable to the other areas of the site. The same has been properly mentioned in the EIA report as points N2 and N6 and this has been done in accordance with the EIA report and on the basis of EIA Airport Manual. They also detailed the manner in which the study was conducted and the various provisions regarding the nature of the study to be conducted as per the Manual as well as CPCB guidelines for airport project.

54. The study will have to be conducted on a given day during study period at a given location covering residential, commercial and silence zone continuously for 24 hrs at hourly intervals and it is on that basis, it has been prepared which is evident from para 3.10.3 of the EIA

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report. They have given the details of the water requirements and according to the study, they require 647.9 KLD of water for operation of stage out of which freshwater demand is about 153.9 KLD and this will be met from water supply from the Vizianangaram Municipal Corporation and about 494 KLD will be met through recycled water (which is for terminal 210.7 KLD and landscaping 283.3 KLD). They have obtained necessary permission from the concerned authorities and it was based on the assessment made by the Central Ground Water Board. They have provided the necessary details in the EIA report without any suppression.

55. The rehabilitation and resettlement plan has to be prepared by the State of Andhra Pradesh as they are the persons who are acquiring the property for the project and they have undertaken the same and the relocation for resettlement etc have been identified and they will be doing the same. The 2^ndrespondent had already developed Gudepuvalasa village with complete infrastructure and another Polipalli village for R&R Colonies are under development in those areas.

56. The allegations that the baseline data was collected by a company not accredited by QCI-NABET are not correct. GreencIndia is an environmental consultancy organisation which has been accredited by QCI-NABET as EIA consultancy organisation for preparation and presentation of Environment Impact Assessment for each EIA sector and they are doing the work since 2010 for many sectors including airport sector. They have given the details of the projects undertaken

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by them. The GCPL has signed MoU with Envirotech for environmental monitoring (details provided in the EIA report annexure 11.2). The Envriotech is MoEFF&CC accredited agency for environmental monitoring (details provided in the EIA report annexure11.1). For performing environment monitoring, the laboratory should be recognised from MoEF&CC as per the guidelines for Recognition of Environmental Laboratories under the Environment (Protection) Act, 1986.

57. The allegation that there was no proper application of mind is not correct. In fact reading of the minutes of the Expert Appraisal Committee will go to show that wherever they required additional particulars, they sought for from the project proponent. Only after deliberation with the project proponent on those aspects, they have taken a decision and the process adopted by them which is evident from the minutes of the EAC which will go to show that there was proper application of mind. Though, the project was considered in the EAC meeting on 13.04.2017, since they wanted some further details regarding public hearing, it was adjourned to 14.04.2017 evidenced by annexure R-10 produced along with the counter statement and only after producing the details and presentation made by the project proponent on these aspects, the Expert Appraisal Committee had recommended the project only on 14.04.2017.

58. All the grievances raised in the public hearing were addressed by the project proponent and made a presentation and only after satisfaction, the same has been approved. So, the allegations that the issues raised

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in the public hearing were not considered are not correct and hence denied. The words mentioned as Maharashtra State Pollution Control Board instead of Andhra Pradesh State Pollution Control Board and instead of Bhogapuram Airport, Kurnool Airport etc are only typographical mistakes and perusal of the details will go to show that it relates to the present project at the designated site and not relates to Kurnool Airport and the name Maharashtra Pollution Control Board inadvertently typed as an typographical mistake and it is not intentional and that will not vitiate the standard of application of mind by the Expert Appraisal Committee as projected by the appellant. They also denied the allegation that there was violation of Greenfield airport policy as no airport can be established within a distance of 150 km from the existing civil aviation airport and it is situated within 56kms of Vishakhapatnam airport and it is in violation of the airport policy. They have given the details of necessity for an alternate Bhogapuram International Airport to Vishakhapatnam Civil Enclave (a Naval Airbase) for the following reasons:

(i) Present runway 10-28 in Vishakhapatnam Airport is unidirectional.

(ii) There is no possibility of expansion of present airbase due to lack of land availability,

(iii) Safety of naval and military establishment,

(iv) Water logging,

(v) Restrictions for commercial operations due to naval operations.

(vi) Airport is unable to handle expected increase in traffic due to overall development of IT sector/Electronic

sector/industries/Tourism/real estate in and around Vishakhapatnam and Vizianagaram.

59. In fact, the Vishakhapatnam airport is a naval airbase with several operational constraints and there is no prohibition of Greenfield policy in terms of setting up of another airport within 150 km as the necessity

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for such establishment has to be considered by the Civil Aviation Ministry on case to case bases. Accordingly, the Ministry of Civil Aviation has considered the aspect and then granted the permissions. The decisions relied on by the appellant in the appeal memorandum are not applicable to the facts of this case. There are no vitiating circumstances warranting interference with the issuance of environment clearance granted and they prayed for dismissal of the appeal.

60. The 4^threspondent also filed additional counter affidavit more or less reiterating the earlier contentions, giving details of studies conducted by them regarding the existence of human made eco-sensitive structures and they also mentioned that there was not suppression of material fact and more or less reiterated the contentions raised by 4^th respondent in their earlier counter affidavit. They reiterated that the project area is confined to 2004.52 acres of land and 119 acres for approach road.

61. They also relied on the decision on the Hon"ble Apex Court in Hanuman Laxman Aroskar Vs. Union of India⁴regarding the nature of study to be conducted for airport projects. They also given details of the water supply and the availability of water resources as follows:

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in River Champavathi. c. Nellimarla Head works (New Scheme) in River

Champavathi.

d. Ramathirthalu Head work (old scheme) in River Champavathi and

e. Ramathirthalu Head work (new Scheme) in River

Champavathi.

62. The supply of water from the existing reservoirs will be only 2.6 per cent of the surplus water available in the reservoir for the project purpose. They also explained the water balance diagram as follows:

(i) The water balance diagrams are indicative of analysis for the monsoon and non-monsoon scenarios (page 2-16) figure 2-5 & 2-6. The basis for water estimation is based on Water Consumption in Litres Per Capita Daily (LPCD) estimation, which includes Fresh and recycled.

(ii) The estimated terminal recycled water requirement as per LPCD is

184.9 KLD and its given in the table 2-4 (page 2-15). The 184.9 KLD shall be obtained from treated water storage tanks.

(iii) The water balance of Fig 2.6 is taking account of rainwater availability of monsoon season for the landscaping hence, the landscaping water is reduced to the extent of about 65%.

(iv) The final estimated water calculation has been given in table 2-4 (page 2-15). The water demand and balance has been estimated holistically taking account of monsoon and non-monsoon seasons and focusing all possible water conservation and reuse.

(v) In the appraisal meeting of project with the EAC it was presented, same is in the record of MoEF&CC.

(vi) The contentions made by the petitioner are being addressed in the presentation made by the project proponent.

(vii) Regarding water balance diagram given in the EIA report (@page 2-16) had been improvised at the stage of appraisal meeting (@slide 24 and 25 of EAC appraisal presentation) for monsoon and non-monsoon seasons considering waste water from flights. The water details given in the balance diagram are for seasonal assessment and to take design capcity of STP. It can be observed from the balance diagram, that the estimated capacity need is about

343.4 KLD, however, taking 20% excess into design the project proponent committed to design and operate STP of 415 KLD in both the seasons.

63. They also supported the competence of the consultant in para 71 to 77 and also para 80 and 81 of the counter affidavit regarding allegations

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made about a particular expert, namely, Mr. Rahul Singh. They also produced certain annexure to support the case of the competence of the consultants entrusted for this purpose. They also denied the allegations that there is no necessity for establishment of this airport on account of certain decision taken for discontinuous of manufacture of airbus A380 on the basis of certain newspaper report. The airport was visualise for accommodating the maximum width aircraft, namely like airbus A380 and that does not mean that they are not accommodating other types of airplanes and merely because particular type of airport has discontinued manufacturing of this of plane will not necessarily result in abandoning the present project which was intended to accommodate several aircrafts and not only airbus A380 alone. They have also given the details of nature of airport and requirements for each type of airports in para 98 and 99 of the additional counter statement.

64. They further reiterated the contentions raised by them earlier in counter statement in respect of application of mind by the Expert Appraisal Committee. So, they prayed for dismissal of the appeal.

65. 2^ndrespondent filed another additional affidavit explaining the details of major source of water from where they are going to provide water for this project.

66. 4^threspondent also filed another counter statement after the grounds of appeal was amended, more or less reiterating the contentions raised by the 2^ndrespondent in their additional counter statement.

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67. 5^threspondent filed counter affidavit contending that they are nothing to do with the validity of the environment clearance granted, which according to them was granted in accordance with law. Environment clearance was granted in favour of the M/s Bhogapuram International Airport Corporation Ltd, now known as Andhra Pradesh Airports Development Corporation Ltd. It was granted for development of phase-I of Greenfield International Airport at Tehsil Bhogapuram, District Vizianagaram, Andhra Pradesh popularly known as Bhograpuram Airport.

68. 5^threspondent is a company incorporated under the provisions of the Companies Act, 2013 having identity number

U74999AP2020PLC114561 and its registered office at 10-1-43, Flat No. 202, second floor, SIripuram Fort, Visakhapatnam, Andhra Pradesh. The State of Andhra Pradesh was re-constituted in 2014 and there was a need for a new airport to provide reliable and seamless air connectivity across the State of Andhra Pradesh in order to facilitate tourism, logistics by linking place of industry and other major areas in the State of Andhra Pradesh.

69. 4^threspondent was thus constituted as the project proponent and after obtaining necessary clearances and approvals, the environment clearance was granted on 14.08.2017. Thereafter, the RFQ was issued by 4^threspondent to develop, operate and maintain a Greenfield Airport at Bhogapuram in Vizianagaram District through Public Private Partnership (PPP) on design, build, finance, operate and transfer (DBFOT) basis evidenced by annexure 1. Pursuant to an

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international competitive bidding, the 5^threspondent was selected as the highest bidder by State of Andhra Pradesh vide G.O. Ms. 15 dated 30.02.2021 and issued order evidenced by annexure 2 produced along with counter affidavit.

70. Concession Agreement dated 12.06.2020 was duly executed between 4^threspondent and the 5^threspondent as per terms of concession agreement. Pursuant to the execution of the concession agreement, 5^th respondent has commenced preliminary surveys, master planning and designing works for the new airport. They have already submitted the master plan of the project to the 4^threspondent, the authority under the concession agreement. The brief sequence of the list of incidences of events leading to execution of Concession agreement is set out as follows:

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71. The 4^threspondent had applied for grant of environment clearance on 27.02.2016 on the basis of the EIA Notification, 2006. The Environment Impact Assessment report was prepared by GreencIndia Consulting Private Ltd, an environmental consultant, duly accredited with QCI- NABET. Environment Impact Assessment was prepared in accordance with the Terms of Reference for the airport sector deemed approved under the EIA Notification, 2016 as amended by GO. No. 996(E) dated 10.04.2015 issued by MoEF&CC along with additional ToR granted by MoEF&CC dated 04.05.2016.

72. Public hearing was conducted on 11.01.2017 and final EIA report after incorporating the project proponent response to public hearing was submitted to MoEF&CC online on 20.02.2017. The Expert Appraisal Committee considered the project in their 15^thmeeting held on

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13.04.2017 and 14.04.2017. After detailed deliberations and consideration of aspects in the Environment Impact Assessment Report, the Expert Appraisal Committee recommended the project and MoEF&CC granted the impugned environment clearance.

73. The appellant challenged the land acquisition proceedings separately before the Hon"ble High Court of Andhra Pradesh. While the 5^th respondent was not party to the proceedings prior to the grant of environment clearance, they bonafide believed that final Environment Impact Assessment has been done a thorough analysis of impact of construction and operation activities at the project site and in the study area. It was prepared on the basis of the EIA Notification and Environment Impact Assessment Guidance Manual for Airports and the finalized ToR was issued by the Expert Appraisal Committee. They have applied their mind and recommended the project and it was accepted by the MoEF&CC.

74. The issues raised by the appellant regarding legality of the environment clearance was not correct. They have raised the following issues as the defect in the Environment Impact Study and consideration by the Expert Appraisal Committee as follows:

(i) On 27.02.2016, the respondents no. 4 to the appeal, i.e. APADCL, applied for grant of environmental clearance for the Bhogapuram Airport.

(ii) Environmental Impact Assessment Report was prepared by GreencIndia Consulting Private Limited ("Greencindia") an environmental consultant, duly accredited with QCI-NABET. The Environmental Impact Assessment Report was prepard in accordance with the Terms of Reference for the airport sector deemed approved under the EIA Notification dated 14.09.2006 ("EIA Notification") as amended by GO No. 996 (E) dated

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10.04.2015 issued by MoEF&CC ("EIA Government Order") along with additional TOR granted by MoEF&CC dated 04.05.2016.

(iii) Public hearing on the Environmental Impact Assessment Report was conducted on 11.01.2017 and final EIA report after incorporating the project proponent response to public hearing was submitted to MoEF&CC online on 20.02.2017. Thereafter, the Expert Appraisal Committee constituted under the EIA Notification for Airports, evaluated the Bhogapuram Airport in 15^th meeting held on 13.04.2017 and 14.04.2017.

(iv) After detailed deliberations, consideration of aspects in the EIA report, the EAC granted the environmental clearance to the respondent no. 4 vide proceedings bearing F. No. 10-21/2016-IA.III dated 14.08.2017.

(v) The appellant herein, claiming to be an agriculturalist, having land in the area which, according to the appellant, was illegally acquired for the Bhogapuram Airport on the basis of newspaper information, filed an appeal before this Hon'ble Tribunal challenging the grant of the environment clearance on 13.11.2017.

(vi) It is also a matter of record that appellant has challenged land acquisition proceedings separately before the Hon'ble High Court of Andhra Pradesh.

75. They have answered the queries which they collected on the basis of information and their beliefs which reads as follows:

(i) There is no concealment of litigation since the same is captured in the EIA report and the environmental clearance itself.

(ii) The RFQ itself was limited for the purpose of 'develop, operate and maintain a Greenfield airport at Bhogapurarm..' Therefore, there is no substance to the allegation that there is an interlinked project or that it involves 15,000 acres.

(iii) In accordance with the amendment to the EIA notification by the EIA Government Order, as described above, standard TOR is deemed to have been granted when Form F1 was submitted by the Project Proponent i.e. the Respondent No. 4 herein. Therefore, there is no merit in the allegation that baseline studies commenced prior to approval of TOR.

(iv) The EIA Report in Chapters 2, 3 and 4 exhaustively captures the Bhogapuram Airport description, description of environment and impact t assessment of the Bhogapuram Airport in the Study area during construction and operation stages with mitigation and environment management plans. The appellant has only selectively taken out tables and charts. It is submitted that with respect to air, noise, water, soil wastes and

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biological the impact analysis during construction and operations phase has been duly conducted by EIA consultant in the EIA report.

(v) The credentials of EIA consultant have also been shared as part of the EIA report and hence, the EIA consultant is duly accredited with NABET/QCI.

76. The report of the Expert Appraisal Committee will go to show that when they are not satisfied with the particulars furnished, they adjourned the consideration to 14.04.2017 and only after obtaining the explanation regarding the points raised in the public hearing that they have recommended the project. As regards the Civil Aviation"s Greenfield Airport policy as contended by the appellant is not correct and it is for the Government to consider this aspect on case to case basis and there is no total prohibition for setting new airport within aerial distance of 150 km from the existing civilian airport. It is a policy decision to be taken by the Government which the appellant is not entitled to challenge. They have also given their experience in executing the work regarding the establishing of airports at several places and they have narrated the same as follows:

"26. Brief of the GMR Group's prominent recognitions in practicing environment friendly initiatives are set out below. a. Delhi International Airport (Delhi Airport)

i. Delhi Airport has been certified ISO 14001:2015 Environment management system, ISO 14064 Greenhouse Gas Emission Management. Delhi Airport is first airport in the world to be certified for ISO 50001:2011 Energy Management system and currently, the Energy Management System of Delhi Airport is certified under ISO 50001:2018. ii. Delhi Airport has won numerous awards and recognition for its excellent performance towards environmental sustainability and climate change mitigation initiatives. To name a few:

• First Airport in the Asia Pacific region to achieve "Level 3+, Neutrality" (achieved in 2016) and also the first airport in the Asia Pacific to achieve "Level 4+, Transition" (achieved in 2020) accreditation under the globally recognized

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ACI's Airport Carbon Accreditation framework on the objective the objective of climate change mitigation and voluntary reduction of anthropogenic greenhouse gas emission from the Airport operations.

• Terminal 3 has achieved LEED India Gold under New Construction Category in 2011 and IGBC Platinum for Existing Building category in 2016.

• ACI Asia-Pacific Green Airports Recognition for 5 years in a row, 2017 (Level:

Gold), 2018 (Level: Silver), 2019 (Level: Platinum), 2020 (Level: Gold) and 2021 (Level: Platinum).

• DIAL has been rated as "Climate Oriented" company under Climate Action Program (CAP 2 degree) by Confederation of Indian Industry (CII) for the year 2019 and 2020.

• DIAL has been one of the winners in CII National Award for Excellence in Energy Management in 2014, 2015, 2016, 2018, 2019 and 2020. Based on its consistent energy performance over the years, DIAL also received National Energy Leader Award in 2020.

• DIAL has won the National Water Award- 2019 by Ministry of Jal Shakti (GOI) in January, 2021.

• DIAL has also adopted the GreenCo framework by CII and has achieved Platinum Level of recognition in 2016 for excellence in the field of environmental sustainability. •

Golden Peacock Award for Environment and Sustainability - 2014, 2015 and

2018

• Wings India "Most Sustainable Airport" 2018 A true copy of certain award citations is attached as Annexure-3 b. Hyderabad International Airport (Hyderabad Airport)

i. GMR Group's Hyderabad Airport commissioned in the year 2008 was India's first modern, Greenfield airport developed using the Public Private-Partnership (PPP) framework which was also recognized with the following accolades in terms of sustainable environmental initiatives:

• Hyderabad Airport has been certified with ISO 14001:2015 Environment Management System, ISO 14064-1: 2006 Greenhouse Gas Emission Management, ISO 50001:2018. Energy Management system.

• Hyderabad Airport is the 1st airport in its size category in Asia-Pacific region to win the coveted Level 3+ Airport Carbon Accreditation signifying 'Carbon Neutrality' by ACI. In January 2019, the airport successfully retained 'Carbon Neutral' status for the 3rd consecutive year.

• Hyderabad Airport has received Green Airports Recognition from ACI for the year- 2018 (Level: Gold), 2019 (Level: Silver), 2020 (Level: Platinum), 2021 (Level: Gold).

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• Hyderabad Airport Passenger Terminal Building (PTB) has been certified for

"Leadership in Energy & Environmental Design" (LEED) "Silver Rating" by the US Green Building Council (USGBC).

• Hyderabad Airport has received Golden Peacock award in 2015 for the best environmental management.

• 'Excellent Energy Efficient Unit' Award by the CII based on its consistent energy performance over the years, GHIAL also received National Energy Leader Award in 2019 and 2020.

• During the Wings India 2020 Aviation event, MoCA & FICCI recognized GHIAL with Aviation Sustainability & Environment Award in March 2020.

77. If the execution of the work is delayed further, then there will be escalation of expenses for completion of project which will have impact on the Government Exchequer and people who are going to get benefit out of this project. So, they prayed for accepting their contentions and dismiss the appeal.

78. The appellant has filed rejoinder denying the allegations made in the counter statement of respondent and reiterated their contentions by giving certain other details of the eco-sensitive areas and the deficiencies in the EIA report relying on certain provisions of the EIA Notification as well as EIA Airport Manual and also CPCB guidelines for this purpose and they also produced certain documents.

79. The appeal was filed with delay condonation application as M.A. No. 231 of 2017 and after hearing both sides, this Tribunal by order dated 31.07.2020 earlier dismissed the delay application on the ground that it was filed beyond 90 days provided under Section 16 of the National Green Tribunal Act, 2010 and dismissed the appeal also as barred by limitation. This was challenged by the appellant before the Hon"ble Apex Court by filing Civil Appeal No. 3136 of 2020 and the Hon"ble

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Apex Court by Judgement dated 02.03.2021 set aside the impugned order passed by this Tribunal and condoned the delay and directed this Tribunal to take the appeal and dispose of the same on merits. Accordingly the appeal was taken on file as Appeal No.18 of 2020 on the basis of the orders passed by the Hon"ble Apex Court in this regard.

80. Heard Mr. Ritwick Dutta, Learned Counsel for the appellant, Mr. G.M. Syed Nurullah Sheriff for 1^strespondent, Mr. Atmaram N.S. Nadkarni, Learned Senior Advocate along with Mrs. Madhuri Donti Reddy, Mr. Salvador Santosh Rebello and Mr. Gauravvardhan Nadkarni for respondents 2 to 4 and Mr. Parag P. Tripathi, Learned Senior Advocate along with Mr. Anirudh Krishnan and Mr. Siva K. for 5^threspondent.

81. Learned Counsel for the appellant challenged the environment clearance on following grounds: 1) there is suppression of material fact, 2) the baseline data collected are not in tune with the EIA notification, 3) there are non-mentioning of sensitive areas both natural and man-made within the distance of 10 km and 15 km respectively for the purpose of conduction environmental study, 4) no deep environment study conducting taking all these aspects and as such it is faulty, 5) The environment study conducted on water, land, air and noise are not proper and not in conformity with EIA notification, EIA Airport Manual and CPCB guidelines, 6) No proper cumulative impact assessments of all the inter-linked projects were conducted, 7) The grievances raised in the public hearing were not considered, 8) The agency who conducted the Environment Impact

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Assessment Study is not an accredited agency with QCI-NABET and as such it cannot be relied on and 9) there is no proper application of mind either by the Expert Appraisal Committee or by the MoEF&C before recommending and issuing the impugned environment clearance.

82. According to the Learned Counsel, in Form-I Application, there are material suppression of facts mainly regarding the pendency of Writ Petitions challenging the acquisition notification itself for this project, the eco-sensitive zones within 10 km and 15 km respectively which the project proponent is expected to provide has not been provided. The total extent of the land required for the project was not correctly mentioned and the nature of all inter-linked project, namely, Phase-I, Phase-II and Phase-III were also not explained in the Form-I application so as to appraise the same for the purpose of issuing the necessary TOR by the Expert Appraisal Committee. The baseline data has been collected for the purpose of preparation of EIA report much prior to the issuance of ToR by the MoEF&CC for this project and as such it is vitiated. The re-settlement and rehabilitation scheme for the project affected persons were not discussed by the project proponent in the EIA report which is highly necessary for the purpose of considering the socio-economic conditions of the persons affected and the rejuvenation plan that is required for meeting their socio-economic condition. Water table provided is also not clear as to what is the extent of water required for the project and its source and its impact on water availability in that area. Noise level monitoring and the survey

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conducted were not in tune with the guidelines provided under EIA Notification, 2006 as well as CPCB guidelines and the noise impact on the funnel area of the runway and surrounding areas are not properly assessed. The impact of the project on account of further development of the area has not been considered in the EIA report prepared by the project proponent. The various issues raised in the public hearing especially one Mr. Sharma, Former Secretary of Government of India regarding the impact of the activity in the villages and the socio- economic conditions and the necessity for providing rehabilitation and re-settlement schemes were not considered at all and no remedial measures had been provided to meet the situation. Large number of items were considered in the meeting of Expert Appraisal Committee which considered this project and there is no sufficient time available for the expert members to appraise the project in the right prospective and as such there is no proper application of mind either on the part of Expert Appraisal Committee or MoEF&CC in recommending the project and issuing environment clearance and as such it is vitiated.

83. Further, the consultant who prepared the EIA report is not having the expertise in the field and he is not an accredited agency for preparing EIA report for airport project and as such, the report prepared by un- accredited agency cannot be relied on and this aspect has not been considered by the Expert Appraisal Committee at all before recommending the project. So on these grounds the appellant attacks the validity of environment clearance and sought for setting aside the environment clearance.

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84. The Learned Counsel appearing for the appellant relied on decision reported in Hanuman Laxman Aroskar Vs. Union of India & ors.⁵T. Muruganandam & Ors. Vs. Ministry of Environment and Forests & Ors⁶

, Vimal Bhai Vs. Ministry of Environment & Ors. ⁷

and Uma Maheshwar Dahagam Vs. Union of India & Ors.⁸Utkarsh Mandal vs Union Of India & ors.⁹, Samata Vs. Union of India & Ors.¹⁰, Rudresh Naik Vs. Goa Coastal Management Authority & Ors.¹¹, Maharashtra State Board for Secondary and Higher Education vs. K.S. Gandhi¹², Gau Raxa Hitraxak Manch and Gauchar Paryavaran Bachav Trust vs. Union of India & Ors.¹³and Ravi Yashwant Bhoir vs The Collector¹⁴in support of their case.

85. Learned Senior Counsel appearing for respondents 2 to 4 submitted that there was no deliberate or wilful suppression of any of the facts in Form-I application. Form-I application was accompanied by pre- feasibility report wherein all details relating to land acquisition and litigations pending were mentioned. Further, the Expert Appraisal Committee as well as MoEF&CC were aware of the litigations pending and that was the reason why they have incorporated as one of the conditions that this will be subject to the outcome of the Writ Petitions pending before the Hon"ble High Court of Andhra Pradesh in respect of the acquisition. Further, this will not have any much impact as

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during the pendency of the proceedings and due to lapse of time, most of the Writ Petitioners who have filed the Writ Petition have accepted the compensation amount and surrendered the land and undertaken to withdraw the Writ Petition filed by them. Only a small extent of land belonging to certain person alone is subject matter of Writ Petitions which are pending. These aspects were brought to the notice of the Expert Appraisal Committee during each stage of appraisal and they were aware of the development in respect of the same as well. So, it is not a case where the Expert Appraisal Committee were not aware of the proceedings for the purpose of proper appraisal as has been submitted by the Learned Counsel appearing for the appellant. As per the EIA notification as well EIA Airport Manual, the study area is 10 km of aerial distance of the project area and for the purpose of considering the existing of the eco-sensitive area, it is confined to 15 km and all these aspects are being considered by the consultants and provided the necessary data and the map showing both 10km and 15 km radius mentioning the eco-sensitive areas etc and as such all material required for appraisal as per EIA notification and EIA Airport Manual are available for appraisal. They have conducted the noise level study on the basis of the guidelines issued by the Airport Authority, EIA Notification, International standard for Airports on environmental study and CPCB guidelines. They are expected to conduct the study in the funnel area up to an height of 1000m both at the landing as well as take off area in the runway and those portions are noted as N2 and N6 in the EIA report on this aspect. All possible

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sound that is likely to emit were considered and they were reflected in the EIA report. The total water requirement and the water that is likely to be procured from local bodies and other agencies and amount of water that is likely to be recycled for the purpose of meeting their necessity were clearly explained in the EIA report. This was reflecting the water requirement both at the construction as well as operational stage.

86. They are also in the phase-I only going to construct the airport for operation of the international airport at Bhogapuram and the other aspects like MRO and Aviation academy etc are expected to be developed during phase-II and Phase-III of the project which were also explained in the EIA report depending upon the increase in the aircraft traffic and the passenger traffic. They are going to develop these in three stages of 6 million, 12 million and 18 million passengers respectively. Further, though earlier the project envisages the development project including the commercial aspect but later that was dropped and they are only confined to establishment of airport alone with approach road for which they require only 2004.52 acres and 119 acres of land respectively which has been explicitly mentioned in the documents produced. Further only in respect of 1332 acres of land is subject matter of litigation and private acquisition and the balance extent of land has been provided by the Government itself and out of the same, except 89 acres, the owners of the remaining property have accepted the compensation and agreed to withdraw the writ petition and those things were clearly appraised to the authorities

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at each stage of appraisal and those things were also to the knowledge of Expert Appraisal Committee as well as MoEF&CC.

87. Whenever, additional requirements or data were required by the EAC, the same were furnished by the project proponent by way of presentation and explained the same and only after consideration of the same, the project was recommended by the Expert Appraisal Committee and granted by the MoEF&CC. It is clear from the discussion in the minutes of the Expert Appraisal Committee and as such, it cannot be said that there was no proper application of mind. Further, the documents will be available to the members of the Expert Appraisal Committee one week prior to the date of meeting and as such there is every possibility of each member verifying the same and evaluating the same before coming for appraisal and that is clear from the way in which discussions were made and further data were sought for by the Expert Appraisal Committee.

88. As regard the re-settlement and rehabilitation are concerned, State Government has undertaken that scheme and since it is a State owned project and acquisition is made by the State for this project and the SPV itself was created in the form of 4^threspondent for exclusively dealing with aspect as part of the Government institution, the entire money for the acquisition is paid by the Government, there is no necessity for project proponent to explain those aspects in the EIA report but however it was explicitly mentioned in the EIA report that it was undertaken by the State Government and the nature of steps taken by them for rehabilitation etc were also explained. All socio-

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economic conditions of the affected persons in that area have been considered in the EIA report and necessary provisions have been made for those purposes and that was explained to the Expert Appraisal Committee and they were convinced and that was the reason why the recommendation was made by them.

89. As regards the qualification of the consultant is concerned, they have taken several such projects and most of them were considered by the Expert Appraisal Committee and the consultants who have been entrusted with the work is an accredited agency and some of the environment clearance granted on the basis of EIA report prepared by the agency which has conducted the study there were upheld by the Hon"ble Apex Court as well and as such the submission made by the Learned Counsel for the appellant that a report prepared by the consultant who has been entrusted as one of the member has no requisite expertise in the field cannot be accepted. As regards the baseline data collection is concerned as per 2015 notification issued by the MoEF&CC, they have permitted the project proponent to collect data on the basis of the standard ToR issued along with the application after 30 days of submission of their application and that can be relied on for preparation of the EIA report and as such the data collected after 30 days of submission of the application by the project proponent is valid and it cannot be said to be against the procedure. The Learned Senior Counsel had relied on the decisions reported in Hanuman Laxman Aroskar Vs. Union of India & ors. ¹⁵

, Hanuman Laxman

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Aroskar Vs. Union of India & ors. 16

and Rajiv Suri vs. Delhi Development Authority and Ors. ¹⁷

in support of their case. So, according to the Learned Senior Counsel, none of the grounds alleged are sufficient to set aside the environment clearance and he prayed for dismissal of the appeal.

90. Learned Counsel appearing for the State of Andhra Pradesh and the Pollution Control Board also filed their detailed written submissions more or less in tune with the submissions made by the Learned Senior Counsel appearing for the respondents 2 to 4.

91. Learned Counsel appearing for the 5^threspondent submitted that they are the highest bidder for executing the project and they have got expertise in the field and they have carried out several projects of international airports as successful concessioner and all necessary details were furnished by the project proponent for appraisal. There is no necessity to interfere with the environment clearance granted. He was much relying on the observations made by the Hon"ble Apex Court in Rajiv Suri case (Supra) regarding the nature of appraisal to be done, the nature of cumulative impact assessment to be done etc. They have relied on the decisions reported in M.C. Mehta vs. Union of India & Ors.¹⁸Sterlite Industries (india) Limited & Ors. Vs. Union of India & ors. ¹⁹

, Goa Foundation & Anr. Vs. Konkkan Railway Corporation & Ors.²⁰, Jal Mahal Resorts Pvt. Ltd vs. K.P. Sharma &

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Ors.²¹, N.D. Jayal & Anr. Vs. Union of India and Ors.²², Basavaiah vs. Dr. H.L. Ramesh & Ors.²³and Vikesh Kumar Gupta & Anr. Vs. State of Rajasthan and Ors.²⁴in support of their case.

92. Learned Senior Panel Counsel appearing for 1^strespondent also submitted that on receipt of the application for issuance of ToR, Expert Appraisal Committee considered the project and issued the additional ToR as the applicant had produced the standard ToR along with request for issuance of ToR on the basis of 2015 notification issued. As per 2015 notification issued, the project proponent is entitled to conduct the work of collection of baseline data after 30 days of submission of application and that can be considered for preparation of EIA report and this was intended for the purpose of avoiding delay in preparation of the EIA report and processing the application for grant of environment clearance within the time frame provided under the EIA Notification, 2006. They have considered all the aspects and it is on that basis, they have issued the additional ToR. They have prepared the draft EIA report and submitted the same to State Pollution Control Board who had conducted the public hearing as required under EIA Notification, 2006 and collected all the details and forwarded the same as required therein to MoEF&CC. The project proponent thereafter applied for environment clearance along with EIA report prepared and the same was forwarded to the Expert Appraisal Committee and the Expert Appraisal Committee in their

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15^thmeeting held on 13-14 April, 2017 considered the project and recommended the project. The project was taken on 13^thApril. Since they wanted certain clarification on the questions of meeting the issues raised in public hearing, they sought for the further details and adjourned the consideration to 14^thApril. On that date the project proponent had submitted a presentation showing the issues raised by each person and the explanation given and action taken on the side of the project proponent and after appraisal of the same, they have recommended the project with conditions and same were evaluated by the MoEF&CC and thereafter environment clearance was granted.

93. Further, EIA report will have to be prepared for airport project on the basis of the guidelines issued under EIA Airport Manual and those things were scrupulously followed by the project proponent and the expert consultants who are an accredited agency and also having expertise in this field of having establishing several famous airports and as such the allegation of non-appraisal of the project in right perspective as alleged by the appellant is not correct. There was no suppression of material fact and the pendency of the litigation was brought to the notice of Expert Appraisal Committee and MoEF&CC and same was considered at the time of appraisal and conditions were also imposed. So, they strictly followed the procedure provided and appraisal was done in its right prospective and there is no illegality in appraising the project and issuing the environment clearance.

94. We have perused the pleadings, submission made (both written and oral) by the Learned Counsel appearing for the parties.

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95. The points that arise for consideration are:-

(i) Whether there is any material suppression of fact made by the project proponent wilfully or intentionally so as to vitiate the appraisal of the project by the recommending or issuing authority as alleged by the appellant?

(ii) Whether there are any misleading statements or inadequate and faulty environmental study conducted without reflecting the necessary things required for the Expert Appraisal Committee as well as MoEF&CC to consider the project?

(iii) Whether Impact Assessment Study conducted is proper?

(iv) Whether the project proponent as well as the consultant have taken into consideration all the aspects which will have probable impact on environment and whether necessary environmental management plan has been provided for meeting the situation to mitigate the possible impact/pollution that may be caused?

(v) Whether there is lack of application of mind on the part of the authorities in considering the project and issuing the environment clearance?

(vi) Whether the consultants who have been entrusted with the work are having the necessary expertise and accreditation as required?

(vii) Whether the environment clearance granted is liable to be set aside for any of the reasons alleged by the appellant?

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(viii) Is there a necessity for imposing any further condition, applying the precautionary principle for the purpose of sustaining the environment clearance granted?

(ix) Relief and costs.

Points:-

96. It is an admitted fact that for the purpose of development of State of Andhra Pradesh and also considering the necessity for establishing more airports, State of Andhra Pradesh has decided to have another airport in this area. Further, when the erstwhile Andhra Pradesh was divided into two States, namely, State of Andhra Pradesh and State of Telengana and the major civilian airport at Hyderabad has become part of State of Telengana, there was a necessity for establishment of a new airport as according to the State of Andhra Pradesh the present airport at Vishakhapatnam is not sufficient to cater to the need of the people. Further in order to develop the economic, industrial and tourism development, they felt it is necessary to have one more international airport and that is how they conceived the idea of establishment of new international airport at Bhogapuaram in Vizianagaram District.

97. So, they have established a new corporation, namely, Bhogapuram International Airport Corporation limited as per annexure R-1 notification dated 20.05.2015 and subsequent notification in this regard. They have shortlisted four sites for this purpose, namely Sabbavaram, Atchutampuram, Bhogapuram and Koruprolu (S.

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Rayvaram) and finally they have selected Bhogapuram for this purpose considering the equal distance between Vizianagaram and Vishakhapatnam Districts and its feasibility, avoiding acquisition of land in areas with more human habitations and buildings, avoiding cost of displacement and resettlement of population, utilising maximum Government land and avoiding approved residential layouts, built up areas, educations institutions, resorts, forest land, river with backwater, mangroves and any area which fall within the eco-sensitive zone and also avoiding the area covered by CRZ notification. Though, they have earlier an idea of comprehensive development plan along with the establishment of airport in that area but later, they have given up the commercial project and confined to airport project alone.

98. It is also an admitted fact that the project site was approved by the Ministry of Civil Aviation vide their proceedings no.AV- 20015/1112015/AD dated 27.01.2016 evidenced by annexure- R2 produced along with the counter of 4^threspondent. It is also an admitted fact that the project proponent had made the online application for the project for issuing ToR along with the Form-I application and pre-feasibility report on 28.03.2016 and the MoEF&CC had issued the additional ToR evidenced by annexure- R9 produced along with the counter statement vide their letter dated 04.05.2016. Thereafter, the public hearing was conducted by the Andhra Pradesh Pollution Control Board on 11.01.2017 on the basis of publication made in the newspaper dated 11.12.2016 in the presence of the District

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Collector, Vizinagaram District and other officials and the EIA report was prepared and they submitted the application for environment clearance along with EIA report to the MoEF&CC on 20.02.2017 which was forwarded to Expert Appraisal Committee (Infrastructure-II) by MoEF&CC and that was considered by the Expert Appraisal Committee as agenda item No. 15.4.1 in their 15^thmeeting held on 13-

14 April, 2017. On 13.04.2017, it was considered and since they wanted certain details regarding the grievances raised in the public hearing, they directed the project proponent to furnish the same and adjourned the consideration to 14.04.2017 and on that date the project proponent had submitted the presentation regarding the queries on land acquisition, resettlement and rehabilitation and other socio-economic conditions and same were explained by the project proponent by making the presentation and it is only thereafter, they have recommended the project with certain conditions and after apprising the same and after nearly 4 months of receipt of the application, the MoEF&CC had granted environment clearance by their letter dated 14.08.2017 which is under challenge in this appeal.

99. Before going into the facts and grounds raised, we feel it appropriate to consider the precedent relied on by both the sides.

100. In the decision reported in Hanuman Laxman Aroskar Vs. Union of India ²⁵

the Hon"ble Apex Court has considered the importance of Form-I application and observed that:

"72..... The disclosure in Form 1 constitutes the very foundation of the process which is initiated on the basis of the information supplied by

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the project proponent. Following the disclosure in Form 1, ToR are formulated, and this leads to the preparation of the EIA report. A duty is cast upon the project proponent to make a full, complete and candid disclosure of all aspects bearing upon the environment in the area of study. The project proponent cannot profess an ignorance about the environment in the study area. The project proponent is bound by the highest duty of transparency and rectitude in making the disclosures in Form 1.

73....There can be no manner of doubt that Form 1 is an important ingredient in the entire process envisaged under the 2006 notification. Hence, clause (vi) of para 8 of the 2006 notification provides that deliberate concealment or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection and lead PART D 44 to the cancellation of a prior EC granted on that basis. The declaration which is required of the project proponent is to a similar effect.

101. And how far it will affect the appraisal was considered in para 82 of the same Judgment which reads as follows:

82....The failure on part of a project proponent to disclose material information in Form 1 as stipulated under the 2006 notification has a cascading effect on the salient PART E 48 objective which underlies the 2006 notification. The 2006 notification represents an independent code with the avowed objective of balancing the development agenda with the protection of the environment. An applicant cannot claim an EC, under the 2006 notification, based on substantial or proportionate compliance with the terms stipulated in the notification. The terms of the notification lay down strict standards that must be complied with by an applicant seeking an EC for a proposed project. The burden of establishing environmental compliance rests on a project proponent who intends to bring about a change in the existing state of the environment. Whereas, in the present case, there has thus been a patent failure on part of the project proponent to make mandatory disclosures stipulated in Form 1 under the 2006 notification, that must have consequences in law. There can be no gambles with the environment: a „heads I win, tails you lose" approach is simply unacceptable; unacceptable if we are to preserve environmental governance under the rule of law.

102. It is also observed in the same decision at para 126 which reads as follows:

126.. Deliberate concealment or the submission of false or misleading information or data material for screening, scoping, appraisal or decision on the application makes it liable for rejection. That the project proponent must submit all information and data without concealing relevant features is a basic hypothesis and expectation of the 2006 notification.

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103. In para 91 of the same Judgement, the necessity for conducting studies taking into account the eco-sensitive zones etc were considered as follows:

91..The purpose and object of the EIA report is to map areas, understand their vulnerabilities, and conduct a study on a scientific basis of the impact of the proposed project on an ecologically sensitive terrain. The EIA report fails to meet a classical requirement of administrative law: to take into account a relevant consideration namely, that within the study area which has to be considered, there is the presence of ESZs.

104. It is clear from the decision that the project proponent is expected to furnish all necessary details which will have impact on environment on account of the project in Form-I application and that is very important document which is being relied on by the Expert Appraisal Committee for the purpose of preparing the TorR which is intended for the purpose of conducting a detailed study on environment impact of the project. If any of the important aspects are deliberately or wilfully omitted by the project proponent, then there will be no possibility for the Expert Appraisal Committee to consider those aspects while formulating the ToR and also later consider the same at the time of appraisal and that will vitiate the proceedings.

105. In the decision reported in T. Muruganandam & Ors. Vs. Ministry of Environment and Forests & Ors ²⁶

the National Green Tribunal had considered the importance of cumulative impact assessment in para 41 of the Judgement which reads as follows:

41.... the Cumulative Impact as the term indicates is not the impact of any project in isolation but it is a total impact resulting from the interaction of the project with other project activities around it- past, present and those to come up in future. It is a comprehensive view of the impacts resulting from all the projects- past, present or planned ones on the environment. Cumulative Impact may be same or different and those arising out of individual activities and tend to be larger, long

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lasting and spread over a greater area within the individual impact. Such studies are therefore commonly expected to:

1. Assess effects over a larger area that may cross jurisdiction boundaries;

2. Assess effects during a longer period of time into the past and future;

3. Consider effects on other eco-system components due to interactions with other actions, and not just the effect of the single action under review ;

4. Include other past, existing and future (reasonably foreseeable) action; and 5. Evaluate significant effect in consideration of other than just local and direct effects.

106. Further, in Vimal Bhai Vs. Ministry of Environment & Ors.²⁷in the appeal filed against the forest clearance granted, the National Green Tribunal has considered the aspect of cumulative impact of the project and necessary study to be conducted as follows:

"(i) are caused by the aggregate of past, present, and future actions;

(ii) are the total effect, including both direct and indirect effects, on a given resource, ecosystem, and human community of all actions taken, no matter who has taken the actions;

(iii) need to be analysed in terms of the specific resource, ecosystem, and human community being affected;

(iv) cannot be practically analysed beyond a reasonable boundary; the list of environmental effects must focus on those that are meaningful;

(v) rarely correspond to political or administrative boundaries;

(vi) may result from the accumulation of similar effects or the synergistic interaction of different effects;

(vii) may last for many years beyond the life of the project that caused the effects; and

(viii) should be assessed in terms of the capacity of the affected resource, ecosystem, and/or human community to accommodate additional effects."

107. In the decision reported in ma Maheshwar Dahagam Vs. Union of India & Ors.²⁸in para 29, this Tribunal had considered the necessity of cumulative impact study and things to be considered for that purpose which reads as follows:

29. This Tribunal had considered the necessity of Cumulative Impact Assessment Study and observed as follows:

....Our effort in this case is to understand what Cumulative Impact Assessment Study is. An enquiring mind would start with the existing law as well as scientific literature and it might be found in persuasive precedents available in the domestic law/literature on closely related topics and at a time in persuasive foreign decision/literature which may

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show how other jurisdiction have resolved the problem. The value of foreign judgment depends upon the persuasive force of their reasoning. Principles of sustainable development and the precautionary principle as envisaged in the Section 20 of NGT Act, 2010 have been developed in international law but have been domesticated into national laws throughout the world and so in India. Thus the knowledge on the subject can be borrowed with rather a free disregard for political boundaries and jurisdictional boundaries i.e. from all sources Indian or Foreign for bettering our understanding.

41. The European Commission in its guidelines for Assessment of indirect and Cumulative impacts as well as impact interactions defines Cumulative Impact as "Impacts that result from incremental changes caused by other past, present or reasonably foreseeable actions together with the project". CEAA guidelines give similar definition of Cumulative effects: these are changes to the environment that are caused by an action in combination with other past, present and future human actions. The U.S Environmental Protection Agency defines it as "the combined incremental effect on human activity". These definitions are in no way conflicting with the concept of Cumulative Impact Assessment Study, the Project Proponent holds to be correct, as revealed from its submissions. Thus, the Cumulative Impact as the term indicates is not the impact of any project in isolation but it is a total impact resulting from the interaction of the project with other project activities around it- past, present and those to come up in future. It is a comprehensive view of the impacts resulting from all the projects- past, present or planned ones on the environment. Cumulative Impact may be same or different and those arising out of individual activities and tend to be larger, long lasting and spread over a greater area within the individual impact. Such studies are therefore commonly expected to: 1

. Assess effects over a larger area that may cross jurisdiction boundaries;

2. Assess effects during a longer period of time into the past and future;

3. Consider effects on other eco-system components due to interactions with other actions, and not just the effect of the single action under review ;

4. Include other past, existing and future (reasonably foreseeable) action; and 5. Evaluate significant effect in consideration of other than just local and direct effects.

42. In the cases, Bombay Dyeing & Mfg. Co. Ltd. Vs. Bombay Environmental Action Group and Ors. (AIR 2006 SC1489) and T.N. Godavarman Thirumulpad Vs. Union of India and Ors. (2008(2) SCC 222) the Hon"ble Apex Court referred to the Principle of sustainable development and precautionary principle and stipulated the need to balance environmental concerns with those of developmental requirements. In no way the Hon"ble Apex Court discouraged the Cumulative Impact Assessment Study. This Tribunal in fact saw the need for Cumulative Impact Assessment Study in the areas where numerous projects were found located. Importance of Cumulative Impact Assessment Study was thus expressed by the Tribunal in Sarpanch, Grampanchayat case (Sarpanch, Grampanchayat Tiroda vs. MoEF:

Appeal No. 3 of 2011) vide order dated 12.09.2011 in following words;

"Unfortunately, the cumulative effect of these four proposed projects was not considered to be of significance in causing environmental pollution in a small area. It appears an impression is sought to be created that there was only one application of Tiroda mine and at that time the Redi mine was not in operation. When number of mines are sought to be considered in a small area of Sawantwadi Taluk, the EAC was 34 expected to examine various aspects such as the cumulative impact of Air, Water,

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Noise, Flora Fauna and socio-economic aspects in view of large number of transport vehicles, plants and machinery etc. that would be operating in the area. It would have been appropriate, if a cumulative impact study was undertaken to take care of all existing/proposed mines within 10 km of the present project site apart from Redi mine, if any. Therefore, we are of the opinion that these aspects were not properly assessed and examined scientifically and, therefor, the EIA report requires to be reexamined afresh".

108. The importance of public consultation and its appraisal was considered by the Hon"ble Delhi High Court in Utkarsh Mandal vs Union Of India & ors.²⁹which reads as follows:.

"4... We therefore hold that in the context of the EIA Notification dated 14th 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 such objections 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 materials and therefore arbitrary.

..........

32......

Consequently, the exercise expected to be performed by the EAC (Mines) is a serious one and has to include a consideration on merits of the objections raised at the public hearing. Its decision must reflect this. We do not accept the contention of the learned ASG that as long as the MoEF while taking the ultimate decision has applied its mind to the objections raised at the public hearing, the requirement in law would be satisfied. The whole purpose of "outsourcing" the task to an EAC comprised of experts was to have a proper evaluation of such objectives on the basis of some objective criteria. It is that body that has to apply its collective mind to the objections and not merely the MoEF which has to consider such objections at the second stage.

109. The Hon"ble Apex Court also considered this in Hanuman Laxman Aroskar Vs. Union of India (Supra) which reads as follows:

"111. Public consultation involves a process of confidence building by giving an important role to those who have a plausible stake. It also recognizes that apart from the knowledge which is provided by science and technology, local communities have an innate knowledge of the environment. The knowledge of local communities is transmitted by aural and visual traditions through generations. By recognizing that they are significant stakeholders, the consultation process seeks to preserve participation as an important facet of governance based on the rule of law. Participation protects the intrinsic value of inclusion. ....112.8 public consultation cannot be reduced to a mere incantation or a procedural formality which has to be completed to move on to the next

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stage. Underlying public consultation is the important constitutional value that decisions which affect the lives of individuals must, in a system of democratic governance, factor in their concerns which have been expressed after obtaining full knowledge of a project and its potential environmental effects.

103 Apart from the intrinsic value of public consultation, it serves an instrumental function as well. The purpose of ascertaining the views of stakeholders, is to account for all the material concerns in the design of the proposed project or activity. For this reason, the process of public consultation involves several important stages. The Pollution Control Board is under a mandate to forward the proceedings to the regulatory authority. The project proponent must address all material environmental concerns and make appropriate changes in the draft EIA and EMP. The project proponent may even submit a supplementary report to the draft EIA. Each of these elements is crucial to the design features of the 2006 notification. A breach will render the process vulnerable to challenge on the ground that: (i) significant environmental concerns have not been taken into account; (ii) there was an absence of a full disclosure when the EIA report was put up for consultation; and (iii) concerns which have been expressed by persons affected by the project have not been adequately dealt with or analysed.

110. Regarding the proper application of mind and appraisal of the project, this Tribunal in Samata Vs. Union of India & Ors.³⁰observed as follows:

"9) It is a well settled law that a decision taken must reflect the consideration of the materials available before the decision maker and the opinion formed on such material and the failure to give reasons for accepting or rejecting the projects would vitiate the decision taken on the ground of non application of mind to relied materials and for arbitrariness. Therefore, the recommendation to approve the project given to the MoEF by the EAC was arbitrary. Hence, for all the reasons stated above, the EC granted by the 1st respondent vide its letter dated 15.3.2010 to the 3rd respondent has to be quashed.

......

it is a mandatory requirement and also a duty of the EAC to whom the task of evaluation has been delegated to indicate its decision that the objections and concerns raised at the public hearing and the response of the Project Proponent thereon were considered and as to what reasons those objections and concerns were accepted or negatived In the said decision, it has been unambiguously held that the failure to give such reasons and render the decision vulnerable to attack on the ground of being vitiated due to non application of mind to relevant consideration and therefore, arbitrary."

111. In Rudresh Naik Vs. Goa Coastal Management Authority & Ors.³¹ this Tribunal observed on this aspect as follows:

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"It is a settled rule of law 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 reasons must not be like judgments of courts, but they must provide an insight into the thinking process of the authority as to for what reasons it accepted or rejected the request of the applicant."

112. The Hon"ble Apex Court in Maharashtra State Board for Secondary and Higher Education vs. K.S. Gandhi³²observed as follows:

21. Reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion reached. When an order affects the rights of a citizen or a person irrespective of whether it is quasi judicial or administrative order and unless the rule expressly or by necessary excludes recording of reasons, it is implicit that the principles of natural justice or fair play require recording of germane and precise relevant as part of fair procedure in an administrative decision, order/decision itself may not contain reason. But, at least the records should disclose reasons.

....

27. The consistent view of the courts has been that recording of reasons is an essential feature of the principles of natural justice. Natural justice cannot be understood in isolation. It must be examined while keeping in mind the facts and circumstances of a given case.

113. The same view has been reiterated by this Tribunal in Gau Raxa Hitraxak Manch and Gauchar Paryavaran Bachav Trust vs. Union of India & Ors.³³and this Tribunal observed as follows:

33. The definition of the word "Appraisal" as given in Black's Law Dictionary is as follows:

"Appraisal -

i. The determination of what constitutes a fair price; valuation; estimation of worth.

ii. The report of such a determination. - also termed appraisement."

Thus, appraisal of the project does require evaluation as well as estimation of worth for the purpose of assessment/determination thereof. Needless to say, the process of "Appraisal" requires application of mind, independently, and evaluation of the material in order to find out whether it is a project worth grant of EC or for the purpose of refusal of the EC, as the case may be.

114. The Hon"ble Apex Court in Ravi Yashwant Bhoir vs The Collector³⁴ on this aspect observed as follows:

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"It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. The Court noticed that the expanding horizon of the principles of natural justice provides for requirement to record reasons unless recording of such reasons is specifically excluded by a Statute."

115. The Hon"ble High Court of Himachal Pradesh in Himparivesh Environmental Protection Society vs. State of Himachal Pradesh ³⁵ reiterated the same aspect.

116. The Hon"ble Apex Court in Hanuman Laxman Aroskar Vs. Union of India³⁶observed that EIA report will have to be prepared on the basis of the EIA Notification, 2006 and also the EIA Airport Manual and observed that the same will have to be done after strictly complying with the procedure provided under these notifications and the guidelines given in this regard.

117. In the decision report in Hanuman Laxman Aroskar vs. Union of India & Ors. ³⁷

the Hon"ble Apex Court had considered the Expert Appraisal Committee"s report which was prepared on the basis of the EIA Notification and EIA Airport Manual and CPCB guidelines given therein and then came to the conclusion that EIA Report was prepared strictly in accordance with the procedure provided therein and also considered the fact that once the necessary papers have been placed before the Expert Appraisal Committee in advance and they have considered the same and then recommended the project merely because detailed reasons were not given is not sufficient to set aside the same, if the Court is satisfied that all necessary details were placed before the

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Expert Appraisal Committee in advance and the same were considered and then recommended the project.

118. In the decision report in Rajiv Suri vs. Delhi Development Authority and Ors.³⁸the Hon"ble Apex Court by majority while considering the validity of the new Parliament building construction project popularly known as „Central Vista Project" the Hon"ble Apex Court had considered the impact of what is integrated project and the nature of appraisal to be done by the Expert Appraisal Committee and observed that if it is a single project without existence of any other project in that area, the cumulative impact study must be restricted to that project in that area alone and wider concept of considering the impact of the project and the pollution load that is likely to be caused in view of the existing project in that area within a distance of 10 or 15 km will not normally arise and if the entire possibility of all pollution aspect and environment impact has been considered while preparing the Environment Impact Assessment report, then that will be sufficient for that purpose. In this case also it was reiterated that if the entire documents relating to the appraisal of the project were placed before the Expert Appraisal Committee in advance and if they have got the opportunity to peruse the documents sufficiently before doing appraisal on the particular date, then even if a number of projects were placed before the authority for consideration, that alone will not be sufficient to come to the conclusion that there is no possibility of proper

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application of mind in appraisal of the project and that cannot be a ground for setting aside the environment clearance granted.

119. In M.C. Mehta vs. Union of India & Ors.³⁹and Sterlite Industries (india) Limited & Ors. Vs. Union of India & ors.⁴⁰the Hon"ble Apex Court had considered the question of Sustainable Development and Environmental Impact and observed that Court will have to consider the Sustainable Development and economy development without affecting the environmental impact prospect and if necessary precautions can be taken for the purpose of protecting environment mitigating its impact on environment, then such projects can be permitted by the Government.

120. Further in the decision reported in Goa Foundation & Anr. Vs. Konkkan Railway Corporation & Ors.⁴¹, Jal Mahal Resorts Pvt. Ltd vs. K.P. Sharma & Ors.⁴², N.D. Jayal & Anr. Vs. Union of India and Ors.⁴³, Basavaiah vs. Dr. H.L. Ramesh & Ors.⁴⁴, Vikesh Kumar Gupta & Anr. Vs. State of Rajasthan and Ors.⁴⁵, Narmada Bachao Andolan vs. Union of India & Ors⁴⁶and Lafarge Umiam Mining (P) Ltd vs Union of India & Ors.⁴⁷the Hon"ble Apex Court has held that if a policy decision has been taken by the Government taking into consideration larger public interest after due consideration, then unless it is arbitrary and against the law, Courts will be slow in interfering with the policy decision of

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establishing of a particular project in the public interest unless it has got any adverse environmental impact which is irreversible in nature. It is also held in all those decisions that it is the prerogative of the Government to take a policy decision on certain aspects taking into account larger public interest and as far as possible such decisions will have to be allowed to proceed with than suppressing the same on the basis of mischievous applications filed by the parties challenging that policy decision.

121. It is clear from the above decisions that any material suppression of fact which was deliberately or wilfully concealed by the project proponent to be appraised by the authorities which will have impact on environment of establishing such a project and there is no opportunity for the authorities concerned to consider those aspects while considering the project, then the decision taken by the authorities will be vitiated. But if those particulars were available for consideration and those particulars were also considered by the authorities and thereafter made the appraisal and recommended the project, then merely because non-mentioning of certain facts in the Form-I application alone will not be sufficient to set aside the environment clearance granted.

122. Further, if there is no proper application of mind and if it was mechanically appraised and the recommendation was made and clearance was granted, then it cannot be said that there was proper appraisal and proper application of mind that will be a ground for setting aside the environment clearance granted but at the same time, the Courts have observed that if all the necessary material were placed

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before the authorities which was required for proper appraisal in advance and if the expert members of the Committee have the opportunity to peruse and evaluate those documents before coming to the meeting and thereafter, they have sought for certain clarification and those things were furnished and those aspects were also considered and thereafter made the recommendations for clearance, then merely because detailed reasons were not given as in the case of Judgement of the Courts by the Administrative Authorities is not a ground to set aside the documents on the ground of non-application of mind by the authorities. What is required is a reading of the proceedings must show that all necessary details were placed and same were considered and deliberated among the members and only thereafter the decision was taken. Then it can be well said that there was proper application of mind and merely because detailed reasons were not given is not a ground to set aside the environment clearance granted or set aside the decision taken by the administrative or quasi judicial authorities.

123. As regards public consultation also, though the necessity of public consultation and its appraisal were elicited by the decisions in detail, they also observed that if those aspects were also considered and necessary conditions were imposed, then that will be sufficient application of mind and that cannot be treated as non-application to set aside the clearance granted.

124. Regarding the nature of cumulative impact assessment to be conducted also will depend upon the nature of project, location of the project and the existence of other polluting industries or projects etc in

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that area and no straight-jacket guideline can be granted as to how cumulative impact assessment has to be conducted and that will depend upon case to case basis and if it is generally, on the basis of the guidelines given observed then, that will be sufficient for meeting the appraisal and that cannot be a ground for setting aside the environment clearance granted. If any policy decision has been taken by the Government for establishment of any project on public interest, then normally unless it is having adverse impact on environment as such of irreversible nature, such policy cannot be interfered by the Courts/Tribunal. Keeping those principles in mind, the case in hand has to be considered by this Tribunal.

125. The question regarding suppression of material fact is concerned relates to the litigation pending before the Hon"ble High Court in respect of land acquisition proceedings that has not been mentioned in Forms. Further, there was no specific ascertainment regarding the extent of land required for the project and they have not mentioned about the fact that is an interlinked project both for establishment of Greenfield International Airport along with development of commercial complex and other aspects. On the other hand they have mentioned that it is not an interlinked project. As regards pendency of the litigations are concerned, it is true that in Form-I application it was not specifically mentioned but in the presentation made by the 4^th respondent for the purpose of obtaining ToR, they have produced a letter addressed to the District Collector regarding the pendency of the Writ Petitions of 2012 and the stay order mentioned.

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126. Further, the presentation made on 28.03.2016 which was produced as annexure R-8 along with the counter filed by the 4^threspondent which will go to show that the Writ Petition of 2012 was pending before the Hon"ble High Court of Andhra Pradesh was mentioned. Further, though in the project background in the presentation, it was mentioned that Government of Andhra Pradesh has provided 4068.55 acres out of which 2004.52 acres land will be used for establishment of the Bhogapuram Greenfield Airport. Further, they have also mentioned that apart from 2004.52 acres, they will be requiring 119 acres for approach road. So, they specifically mentioned that extent of land required for the project and it was also mentioned in the counter statement filed by the 2^ndrespondent as well the 4^threspondent though earlier they have envisaged for a comprehensive project for establishment of Bhogapuram Greenfield Airport project and also for commercial development of certain area when 2015 notification for this purpose was issued, but subsequently when they decided to proceed with the project, they have confined to establishment and operation of Bhogapuram Greenfield Airport alone and in both the counter statements they have specifically mentioned that they do not require more than 2004.52 acres (811.21 ha) of land for airport along with 119 acres of land for providing service road for the airport. So, they have specified about the land required for the acquisition at the time when ToR was issued and at the time of the presentation of the project proposal for obtaining ToR. They have also given details of the land required for this purposes. So, the submission made by the Learned

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Counsel for the appellant that they were not specific about the land required for the purpose and whether they are having so much land for the purpose etc. is without any merit and the same is rejected.

127. As regards the pendency of the cases are concerned, they have produced a letter received from the Secretary to Government dated 31.08.2015 which was produced along with the presentation mentioning about the pendency of the Writ Petition before the Hon"ble High Court, namely W.P No. 4768 of 2012 and also the interim order passed therein. Since, the notification itself was issued mentioning about the pendency of the Writ Petition and that fact was brought to the notice of Expert Appraisal Committee along with the presentation that they have made.

128. Further, in the subsequent appraisal, when the EIA report was prepared, they have mentioned about all the existing litigations in respect of the same and that is how in the environment clearance granted, the number of Writ Petitions pending were specifically mentioned and it was mentioned that this will be subject to the outcome of the Writ Petitions pending before the Hon"ble High Court. So, it is not a case where the Expert Appraisal Committee and MoEF&CC were not aware of the pendency of the proceedings and they were not able to appraise those aspects before considering the project as has been observed by the Hon"ble Apex Court in Hanuman Laxman Aroskar Vs. Union of India⁴⁸. In that case, in respect of the airport when ToR and other documents were produced the existence of eco-sensitive zone of Western Ghats were not mentioned in Form - I and accompanying

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document and there was no assessment made regarding those aspects as well and there was no possibility for Expert Appraisal Committee and the MoEF&CC to ascertain the impact of the project on such eco- sensitive zone and that was the reason why the Hon"ble Apex Court found that non-mentioning of the material fact which they have suppressed wilfully to avoid appraisal by the Expert Appraisal Committee and MOEF&CC will vitiate the appraisal and treated that as a ground for setting aside the environment clearance granted.

129. Further, it will be seen from the counter affidavit filed by the State of Andhra Pradesh and the project proponent that out of the land required for the project, namely, 2004.52 acres and 119 acres, only 1332 Acres of land was subject matter of the Writ Petition and even out of that, nearly 89 percent of the litigation were withdrawn accepting the compensation paid for the land acquired and given an undertaking that the Writ Petition filed by those persons will be withdrawn. So, the major portion of the land which was subject matter of litigation have been agreed to be released in favour of the State of Andhra Pradesh for providing the same to the airport project and as such it cannot be said that there was no possibility for the Expert Appraisal Committee and MoEF&CC to consider these aspects before granting the environment clearance. So, the dictum laid down in the above case, is not applicable to the facts of this case and that cannot be treated as a ground for setting aside the Environmental Clearance (EC).

130. Other ground was that the inter-linked project in connection with the airport project was not mentioned and no comprehensive impact

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assessment was done for that purpose. It is true that at the time when the original notification of 2015 was issued, there was a wider proposal for establishment of a Greenfield International Airport at Bhogapuram and also to develop a township and the commercial complex adjacent to the airport project area. But subsequently the establishment of township or commercial complex which was earlier visualised was dropped and they have confined to airport project alone.

131. Further, it was specifically mentioned in the ToR that they intend to have this on three phases, first phase for construction and operation of international airport, second phase for the purpose of establishment of MRO and aviation academy and third phase for further expansion of passenger capacity. In the phase-I, they have estimated a passenger capacity of 6 million and in the phase-II they want to increase to 12 million and in the phase-II with a total passenger capacity of 18 million. It was also mentioned in the pre feasibility report filed along with the ToR that establishment of MRO and aviation academy will be considered depending upon the increase in the passenger capacity and also the increase in the aircraft capacity in that area and it was also mentioned that as and when they decided to have the expansion of phase-II and phase-III, separate application for Environmental Clearance (EC) for that purpose will be made. So, as regards environment clearance for this project is concerned, they have only confined to phase-I and they have also mentioned about the plan for expansion of Phase-II and Phase-III for the purpose mentioned above. So, under such circumstances, it cannot be said to be inter-linked or

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inter-connected project and it is part of the same project of establishment of the Greenfield International Airport project of a wider capacity in future.

132. It is also mentioned in the appeal memorandum that natural eco- sensitive zones and human made eco-sensitive zones like school, hospital etc were not mentioned in the Form-I application within the distance of 10 km and 15 km as required under EIA Notification, 2006. The appellant had produced the guidelines for environmental study as regards providing Environmental Impact Assessment for airport projects as per the EIA Airport Guidance Manual for airports which was issued by the Government of India on 05.05.2010. In Chapter 4 as

4.1 under the sub-heading „ Study Area" it was specifically mentioned as follows:

" Primary data through measurements and field surveys; and secondary data from secondary sources are to be collected in the study area within 10 km radius from Aerodrome Reference Point (ARP). Primary data should cover one season other than monsoon and secondary data is to cover one full year. The basis for selection of these criteria is that the aircraft gains a height of 1000ft in this area below which noise and air pollution are generated maximum during its take off stage. Secondary data should be collected within 15 km aerial distance for the parameters as specifically mentioned at column 9 (III) of Form I EIA Notification, 2006. Details of secondary data, the method of collection of secondary data, should be furnished. Similarly the proposed locations of monitoring stations of water, air, soil and noise should be shown on the study area map.

133. So, it is clear from this the primary data will have to be collected within 10 km radius from the Aerodrome Reference Point and it must cover one season other than monsoon and secondary data to cover one full year. The secondary data should be collected within 15 km aerial distance for the parameters specified in the guidelines. That is the reason why, when the ToR was issued, the study area was confined to

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10 km for collecting primary data and 15 km for collecting secondary data.

134. In the Form-I application, they have specifically mentioned about the existence of reserve forest etc in the form-I application within 10 km and also 15 km. It is clear from the documents produced as annexure- A4 by the appellant themselves. Though, it was mentioned in the Form- I that 1567 acres of land will be utilised for commercial area development but subsequently they have given up the same that was the reason why they did not mention in the application as to whether there was any inter-linked projects. They have also in chapter II of form-I under the head „Activity" they have specifically mentioned about the nature of activity that they are going to undertake in detail. They have also mentioned about the water requirement in the Form-I application.

135. As regards environmental sensitivity is concerned, they have mentioned that the project area does not involve any land protected under any international conventions covered under National or Local Legislation for their ecological, landscape, cultural and other related values. They have also mentioned about the distance between the reserved forest and the water bodies available within the distance of 15 km in sub-heading 3 of the Form-I application. They have also mentioned that the area is not falling within the CRZ zone. They have also mentioned about the existence of college etc in the presentation that has been produced by them. Further they have given traffic monitoring locations, soil sample locations, ground water monitoring

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locations, noise monitoring locations and air monitoring locations with the map along with the presentation submitted by them. This was considered by the Expert Appraisal Committee (Infra-II) in their 4^th meeting held on 28-29 March, 2016 as item no 4.2.5 and after considering the documents produced, they have decided to recommend for issuance of ToR for the purpose of preparing the draft EIA/EMP report for the purpose of public hearing, which was evident from annexure A-4 Form-I application filed by the appellant. It is on that basis that the draft EIA/EMP report was prepared and public hearing was conducted. Stage by stage whenever clarifications were required, those things were furnished by the project proponent and it is on that basis appraisal was done. So, it cannot be said there was any wilful concealment of any material fact which vitiated the appraisal by the Expert Appraisal Committee or by the MoEF&CC before recommending and issuing environment clearance. So, under such circumstances, it cannot be said that there was material suppression of facts which entitled this Tribunal to set aside the environment clearance as there was no possibility of proper appraisal of the project by the Expert Appraisal Committee and MoEF&CC as has been observed in Hanuman Laxman Aroskar Vs. Union of India⁴⁹supra as contended by the Learned Counsel for the appellant and such contention is not sustainable and liable to be rejected.

136. As regards the collection of primary data prior to issuance of ToR is concerned, the MoEF&CC as well as project proponent had relied on

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the Notification of MoEF&CC of 2015 regarding this aspect. It was produced as annexure R-6 along with the counter affidavit filed by the 4^threspondent which reads as follows:

"MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE

NOTIFICATION

New Delhi, the 10th April, 2015 S.O. 996(E).—In exercise of the powers conferred by sub-section (1) and clause

(v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with sub-rule (4) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby makes the following further amendments to the notification of the Government of India, in the erstwhile Ministry of Environment and Forests number S.O. 1533(E), dated the 14th September, 2006 after having dispensed with the requirement of notice under clause(a) of sub-rule (3) of said rule 5, in public interest, namely.— In the said notification, in paragraph 7 in sub-paragraph (i), in sub-heading II. for clauses (i) and (ii), the following shall be substituted, namely:—

(i) "Scoping" refers to the process to determine detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought. Standard TOR developed by the Ministry in consultation with the sector specific Expert Appraisal Committees shall be the deemed approved TOR for the projects or activities. The standard Terms of Reference are displayed on the website of the Ministry of Environment, Forest and Climate Change:

Provided that the Expert Appraisal Committee (EAC) or State Expert Appraisal Committee (SEAC) may finalise amendment, if found necessary for a project within thirty days of the acceptance of application in specified application Form I or Form IA. These standard TOR shall enable the Project Proponent to commence preparation of an Environment Impact Assessment Report after successful online submission and registration of the application:

Provided further that, the Expert Appraisal Committee (EAC) or State Expert Appraisal Committee (SEAC) may stipulate additional Terms of Reference, if found necessary, within thirty days of the acceptance of the application in the specified application Form I or Form IA and the Project Proponent shall carry out the EIA study based on the standard TORs as well as the additional TOR, if any, stipulated by EAC/SEAC:

Provided also that the following shall not require Scoping−

(i) all projects and activities listed under Category 'B', against Item 8(a) of the Schedule;

(ii) all Highway projects in border States covered under entry (i) of column (3) and entry (i) of column (4) against item 7(f) of the Schedule;

(iii) all Highway expansion projects covered under entry (ii) of column (3) and entry (ii) of column (4) against item 7(f) of the Schedule; Provided also that -

(A) the project and activities referred to in clause (i) shall be appraised on the basis of Form I or Form IA and the conceptual plan;

(B) the projects referred to in clause (ii) shall prepare EIA and EMP report on the basis of standard TOR specified by the Ministry of Environment, Forest and Climate Change;

(ii) in Paragraph 7 in sub-paragraph (i), in sub-heading, clause (iii) shall be renumbered as clause (ii) thereof.

[F. No. 22-62/2015-IA.III]

MANOJ KUMAR SINGH, Jt. Secy.

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137. By virtue of this, some amendment was made in respect of para 7, so as to quicken the process of environment clearance and delay in preparation of the Environment Impact Assessment Report. It was specifically mentioned, therein that the scoping refers to the process to determine detailed and comprehensive ToR addressing all relevant environmental concerns for the preparation of Environmental Impact Assessment report in respect of the project activity for which environment clearance is sought. Standard ToR developed by the Ministry in consultation with the sector specific Expert Appraisal Committee shall be deemed approved ToR for the project or activity. The standard ToR is displayed on the website of the MoEF&CC. It was specifically mentioned therein that Expert Appraisal Committee or the State Appraisal Committee may finalise amendment if found necessary for a project within 30 days of acceptance of the application in specified application of Form-I or Form IA. The standard ToR shall enable the project proponent to commence preparation of Environment Assessment report after successful online registration and submission of the application. It is also mentioned in the same notification by away of second proviso that the Expert Appraisal Committee or the State Expert Appraisal Committee may stipulate additional ToR if found necessary within 30 days of acceptance of application in the specified application Form-I or Form-IA and the project proponent shall carry out EIA study based on the standard ToR and additional ToR, if any stipulated by EAC/SEAC.

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138. So, it is clear from this that the standard ToR was published by the MoEF&CC by virtue of this Notification to enable the project proponent to prepare the EIA report and if necessary, they are entitled to issue additional ToR and direct the project proponent to conduct study on the basis of the additional ToR as well apart from the standard ToR. So, this enables the project proponent to prepare the Environment Impact Assessment report after submitting the application for ToR and collecting primary data during this period will not vitiate the preparation of EIA report as such. In this case, ToR was issued on 04.05.2016 and the primary data of one season other than monsoon was collected during March, 2016 and May, 2016 i.e just prior to issuance of ToR. Other data were also collected subsequently for one year, namely, the secondary data as required under EIA Notification as well as in the EIA Airport Manual for considering the project for airports and those particulars were incorporated in the EIA report which was submitted at the time of public hearing and also in the final EIA report prepared and produced.

139. Further, the EIA report was completed and application for environment clearance was made after nearly three months of issuance of the additional ToR along with letter dated 04.05.2016. Decision relied on by the Learned Counsel appearing for the appellant in Samata Vs. Union of India & Ors.⁵⁰is not applicable to the facts of this case as in those cases the Environment Impact Assessment study was conducted prior to the issuance of the ToR and also prior to the issuance of the

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amended notification S.O. 996(E) dated 10.04.2015 by the MoEF&CC in this regard. Prior to this notification, there was no standard ToR provided and only after obtaining the ToR issued by the issuing authority that the project proponent is expected to conduct Environment Impact Assessment Study as there will be no material available on the basis of which the study will have to be conducted withoutgetting the ToR. But after this notification, a standard ToR was provided and permission was granted to project proponent to conduct Environment Impact Assessment study on the basis of the standard ToR after submitting of the application. So, under such circumstances, the submission made by the Learned Counsel for the appellant that Environment Impact Assessment conducted and the data collected prior to the issuance of ToR vitiate the EIA report itself and that should not have been relied on by the Expert Appraisal Committee cannot be accepted.

140. As regards mentioning of Kurnool Airport in the EIA Report and in the Environment Clearance mentioning of Maharashtra Pollution Control Board etc are only typographical mistake and cannot be said to be a ground for coming to the conclusion that there was no proper appraisal of the project by the Expert Appraisal Committee. Further, the description given and the details given in the Form-I application will go to show that those things are related to Bhogapuram Airport and not in respect of Kurnool Airport. So, this cannot be taken a ground to come to the conclusion that the project proponent causally prepared the EIA

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report by using cut and paste or copy and paste method and without conducting proper study on this aspect.

141. As regards the establishment of another airport within a distance of 56 km against the airport policy is also not sustainable. It is true that in the Greenfield Airport Policy under sub-heading 8.1, it was mentioned as follows:

"Central Government may from time to time notify guidelines to be followed by DGCA for grant of licence to operate a Greenfield Airport by granting license, DGCA would keep these guidelines in view, for the present the following conditions shall be kept in view by DGCA while granting the license:

A. No Greenfield airport should be allowed within an aerial distance of 150 km of existing civilian airport.

B. In case a Greenfield airport is proposed to be set up within 150 km of existing civilian airport the impact of the existing airport would be examined such cases would be decided by the Government on case to case basis."

142. So, it is clear from this that there is no total prohibition of establishing Greenfield Airport within the distance of 150 km from a civilian airport and the Government, on consideration of the proposal and its impact on the existing airport can grant permission on case to case basis. In this case, the case of the appellant was that the Vishakhapatnam airport is situated within 56 km from the proposed airport at Bhogapuram. The State of Andhra Pradesh as well as 4^threspondent have categorically stated that the Vishakhapatnam airport is a naval base airport with some restrictions on operating civilian airport and it is not a pure and simple civilian airport as such. Further, it was also mentioned in the counter statement filed by the State of Andhra Pradesh as well as

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project proponent that there is no area available for further expansion of the Vishakhapatnam airport so as to cater to the needs of the State of Andhra Pradesh to provide more connectivity through air for their economic, industrial and tourism development as State of Andhra Pradesh is having lot of tourism places like pilgrimage centres etc. and people from all over the world are coming to State of Andhra Pradesh for that purpose. So, it cannot be said that the present airport is situated within the prohibited distance of civilian airport, especially when it is a naval airport with civilian airport facility with some restrictions. Though, there was proposal for expansion of Vishakhapatnam airport when State of Andhra Pradesh was formed but subsequently due to other constraints they have decided to have an independent airport at different places including one at Bhogapuram of Vizianagaram District with larger facility to attract people to come to Andhra Pradesh for development of the State. It is on that basis a policy decision was taken by State of Andhra Pradesh and on that basis a proposal was made to the Civil Aviation Ministry and the same was approved by the Central Government which is clear from the confirmation of the project site by Ministry of Civil Aviation by proceeding no. Av-20015/1112015/AD dated 27.01.2016 evidenced by annexure R-2 produced along with the counter statement of 4^threspondent which reads as follows:

"Government of India Ministry of Civil Aviations Grant of Site Clearance Approval Application Number Av.2015/111/2015-AD Name of Applicant Infrastructure Corporation of Andhra Pradesh

(INCAP)

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Address #10-2-1, III Floor, FDC Complex, AC Guards, Hyderabad 500028 Decision: The Competent authority has granted the site clearance for setting up of a Bhogapuram International Greenfield Airport for public use in Vizianagaram District, near Visakhapatnam subject to the following conditions and the conditions imposed by the Ministry of Defence vide their letter no. 2(12)/2015/D(Air-II) dated 15.12.2015, conditions imposed by Directorate General of Civil Aviation vide their U.O. No. AV.20011/05/2015-AL dated 22.12.2015 and compliance of the observations of Airports Authority of India vide No. AAi/04/78/2015- AR-(P)/825 dated 09.06.2015 and for International operations including the provisions of Airports Infrastructure Policy, 1997/Greenfield Airport Policy 2008.

Conditions of site clearance

(i) The proposal for setting up of Greenfield Airport at Bhogapuram is approved with the condition that scheduled commercial operations at the civil enclave at the existing Vizag Naval Airfield (INS Dega) are stopped once the operation of Greenfield airports at Bhoghapuram starts, for a period of 30 years.

(ii) Consequent upon the above, if any compensation is to be given to the AAI for closure of Civil Enclave, it may be given in the form of suitable equity in new Airport in consultation with the State Government/Promoter. The project proponents may prepare TEFR accordingly.

(iii) The other Terms and conditions stipulate in the clearance given by MoD will also be fully met, particularly those relating to airspace coordination.

(iv) A detailed OLS survey is required to be conducted to ascertain exact locations of obstacles, their infringement and their effect on safety of aircraft operations as mentioned by Directorate General of Civil Aviation (DCGA).

(v) Mitigation of obstacles in approach funnel, removal of HT Line, LT Lines and High Masts etc, should be done as mentioned by Airports Authority of India (AAI).

(vi) Required security clearance should be obtained through MHA/IB and the other agencies for the foreign nationals/Indian representatives to be employed by the company of India.

(vii) No objection from other concerned Government Organisations/Agencies as required.

(viii) The validity of this NOC is five years from the date of issue. If the construction for which NOC has been issued does not complete within 5 years of issue or found to be in deviation from original proposal the NOC shall be deemed null and void. It will be the responsibility of the applicant to obtain fresh NOC for the proposal. (U.K. Bhatia)

Under Secretary to the Govt. of India

Date: 27.01.2016"

143. So, after considering these aspects, Ministry of Civil Aviation has granted a site clearance approval for this project on the basis of the

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application made by the State of Andhra Pradesh for this purpose. The Central Government also after considering the proposal taking into account the existence of Vishakhapatnam airport within a distance of 56 km granted site approval for establishment of this project. Once the approving authority, namely, Ministry of Civil Aviation has granted site approval clearance for establishment of the same, then the State of Andhra Pradesh as well as project proponent are entitled to proceed with the project. As already mentioned above, there is no total prohibition of establishing of any further airport within a distance of 150 km from existing civilian airport but if such an application is made, it is for the Central Government to take appropriate decision on case to case basis. In this case, they have considered all the aspects, namely, the airport at Vishakhapatnam is not a pure civilian airport but it is a naval airport with facility of civilian airport with some restrictions and possibility of expansion is not possible and that is not sufficient to cater to the needs of State of Andhra Pradesh for meeting the facility of passengers who are intended to come to Andhra Pradesh for their industrial and other activities. Once the policy decision has been taken by the Government for establishment of a new airport and it will not have any environmental impact on the existing airport, then there is nothing wrong for the Expert Appraisal Committee and MoEF&CC in considering the grant of environment clearance for that purpose.

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144. The policy decision cannot be interfered with the courts as has been observed by the Hon"ble Apex Court in Jal Mahal Resorts Pvt. Ltd vs. K.P. Sharma & Ors.⁵¹, N.D. Jayal & Anr. Vs. Union of India and Ors.⁵², Basavaiah vs. Dr. H.L. Ramesh & Ors.⁵³and Vikesh Kumar Gupta & Anr. Vs. State of Rajasthan and Ors.⁵⁴and also in Rajiv Suri vs. Delhi Development Authority and Ors.⁵⁵.

145. Further, even applying the principle of Sustainable Development also, if the Government has decided to have more airports for the purpose of catering to their economic development, unless there is adverse impact on environment which is irreversible in nature, Courts/Tribunal should not interfere in upsetting such policy decision of establishing more airports. So, in view of the above discussion, the submission made by the Counsel for the appellant that the establishing a new airport within the prohibited distance of 150km is a bar for establishing this airport is unsustainable in law and the same is rejected.

146. Office Memorandum of MoEF&CC dated 24.12.2010 states that for inter-sectoral projects EIA has to be done in its entirety and the said notification attracts various industries such as cement, coke plant, oil and gas transportation etc as multi-sectoral. There was no mention of airport industries as there is no inter-sectoral or inter-linked element involved. This was so explained in the decision of Hon"ble Supreme Court in Rajiv Suri case (supra). Though, it was dealing with bidding

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project, the scope of inter-linked or multi sectoral or intersectorial projects for the purpose of EIA report was considered in detail and only those industries or similar to those industries mentioned in the OM are only said to be intersectorial and interlinked project and all other projects need not be considered as intersectorial or interlinked project so as to mention the same in Form-I application.

147. Since, airport project is not an interlinked or intersectorial project as it is only dealing with the establishment of aircraft and its subsidiaries which are required for its proper operation and maintenance of the airport, there is nothing said to be interlinked or intersectorial project and as such the submission made by the Learned Counsel for the appellant that there was suppression of fact has no substance and the same is liable to be rejected.

148. As regards re-settlement and rehabilitation scheme of the project affected persons, it was specifically mentioned by the project proponent that it is the State Government who are acquiring the property and handing the possession of the property and the entire amount required for acquiring the property is being spent by State of Andhra Pradesh. Further, the project itself is a project of the State Government and the 4^th respondent Corporation was established only for the purpose of establishing and maintaining the project. It is not a case where the acquisition is made at the request of the project proponent so as to make them responsible for providing a scheme for rehabilitation and re- settlement of project affected people. Further it was specifically

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mentioned in the EIA report that rehabilitation and re-settlement scheme for the project affected persons is being evolved by the State Government and this was in a way admitted by the 2^ndrespondent as well that they are dealing with this aspect.

149. Further, certain amount has been provided under the CSR for the purpose of helping the affected people of the area on account of the establishment of the project for the purpose of their education and health and skill training etc. Further, it was mentioned in the counter statement that certain area has been identified by the State Government for this purpose and it is being developed as well. Further, most of the area covered by the project under acquisition was described either as agricultural land or rocky area and the building covered area affected by the project is having less percentage for which proper compensation has been paid. Under such circumstances, non-mentioning of the re- settlement or rehabilitation scheme for the project affected people by the project proponent is not fatal in this case and the decision relied by the Learned Counsel for the appellant in M.P Patil vs. Union of India & Ors.⁵⁶is not applicable to the facts of this case. So, the contention on the ground that there is no proper application of mind by the MoEF&CC and Expert Appraisal Committee does not sustain.

150. There was an attempt made on the part of the Learned Counsel appearing for the appellant that the land details given and the extent of land provided when compared to the plan prepared by RITES and the

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consultants, namely, GreencIndia Pvt Ltd are contradictory. But, a perusal of the plan produced by the State Government and the project proponent regarding the plan prepared by RITES and GreencIndia Pvt Ltd, there is no much difference in the shape and also the extent of land provided.

151. There may be certain minor discrepancies which is not sufficient to come to the conclusion that the assessment regarding the requirement of land and the particulars given are not sufficient for the authorities to consider the project. Assertions have been made by both the State of Andhra Pradesh and 4^thRespondent that they do not require any excess land than the land mentioned in the EIA Report namely, 2,004.52 Ha. plus 119 Ha. for service road. So under such circumstances, there is no merit in the submission made by the counsel for the appellant that the project proponent is not sure about the extent of land required for the project and they are giving misleading statement to the Expert Appraisal Committee and the MoEF&CC for getting the project approved.

152. As regards the EIA Report is concerned, they have provided all the details as required under the Appendix to the EIA Notification, 2006. The table of contents of the EIA Report submitted by the project proponent shows the following details:-

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153. They also produced certain documents as annexures namely, Annexure 1.1 - ToR Compliance, Annexure 2.1 - Land related and R & R documents, Annexure 3.1 - Hourly on site meteorology data, Annexure 3.2 - Phytosociological Study Report, Annexure 11.1 - Accreditation certificates of EEPL, Annexure 11.2 - GCPL signed MoU with EEPL, Annexure 11.3 - QCI Accreditation Certificate, Annexure I - Trees to be cut and Annexure II - Other layouts.

154. The executive summary of the EIA Report gives a general picture regarding the nature of studies conducted and also about the project. Chapter - 1 deals with the introduction regarding the project, where they have specifically mentioned that they require an area 2004.52 Acres and 119 Acres for approach road. They also specifically mentioned that as the planning for other phases and

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commercial area is at nacent stage and the same is not covered under the present EIA Report. It is true that they have mentioned there that it is Phase -1 only, for which Environmental Clearance (EC) is sought for. But the subsequent assertions made by the State of Andhra Pradesh and project proponent will go to show that they have now dropped the idea of development of commercial area and it is not under their consideration and even for Phase - 2 and Phase - 3, they do not require any excess land other than the land now they have mentioned. They also furnished the salient features of the site and the land details in respect of villages covered from where the airport is expected to cover under the acquisition for this purpose. They also explained the need for establishment of a new airport and the reasons stated exposing the drawbacks in the existing Visakhapatnam Airport which reads as follows:-

"1.5 Need for the Project

Prior to reorganization of the state, Hyderabad Airport accounted for almost 80% of the State's air traffic. In order to mitigate the loss of Hyderabad Airport and to provide public convenience the objective of the project is to cater to the growing need for airport in the new state of Andhra Pradesh. After Hyderabad Airport, Vishakhapatnam airport is the largest existing airport in the state, which has expansion constraints.

Therefore Andhra Pradesh Government is planning to develop a world class state of the air international airport (Aerotropolis - airport city) at Bhogapuram Mandal as an alternative to Visakhapatnam Civil Enclave (Naval Airbase) in the neighbouring district of Vizianagaram. The new Greenfield International airport is planned due to the following drawbacks of the Vishakhapatnam Airport:

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 Present runway 10-28 in Vishakhapatnam Airport has only uni-directional approach

 There is no possibility of expansion of present airbase (Vishakhapatnam Airport) due to lack of land availability.  Safety of naval and military establishment  Water logging

 Restrictions for commercial operations due to naval operations

 Not able to handle expected increase in traffic due to overall development of IT sector / Electronic sector / Industries / Tourism / real estate in and around Visakhapatnam and Vizianagaram.

The Bhogapuram International Airport Aerotropolis will comprise an airport, maintenance/ repair/ overhaul (MRO) facility along with an aviation academy to provide the requisite training facilities for the aviation sector apart from space for aviation related industries / IT Sector/ commercial / retail/ tourism / recreation / real estate development etc. The project will be taken up in the PPP mode with the state holding stake in the form of land holdings. The state Government plans to build this airport on PPP mode."

155. They also dealt with the traffic potential of the proposed airport, air traffic projection and what is the nature of study conducted by them on the basis of the ToR issued. Chapter - 2 of the EIA Report gives the project description, where they have given the proposed project layout as to how they are proposed to establish the project at Page 53 of the EIA Report in the map attached as shown below:-

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156. Though a space for commercial development was also provided therein, they have now dropped that project and as such, there is no necessity to undertake any study on this aspect as alleged by the counsel for the appellant.

157. They have also given the details of the key design features of the project such as runways, number and orientation of runways, runway length, possibility of runway extension, runway width and taxiway, explaining the taxiway system, length of taxiway, width of taxiway, isolated aircraft parking position, and the description of apron consist of commercial aircraft apron, long term parking apron, cargo apron (Domestic/International), Ground Support Equipment Area (GSE), suggested pavement structure for runways, taxiways and aprons and buildings consist of passenger terminal building, providing linear - Semi Centralized Terminal Concept shown as Figure 2 - 4, Special system for terminal building, domestic / international cargo building, air rescue and fire fighting (ARFF), ATC Tower and Technical building, heavy airfield maintenance, maintenance repair and overhaul (MRO) facility, aviation academy, hangers and Support/Ancillary Facilities consist of fuel farm, catering facility, boundary wall/operation fence etc. in detail, apart from providing land use, water source and demand. They have provided water balance diagram in Chapter 2 with Figure 2-5 as follows:-

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158. They also dealt with the nature of power supply consist of HT External Electrification Scheme for Bhogapuram Airport, Main Receiving Sub Station (MRSS), Secondary Sub Station (SS) and DG sets, Electrical Sub Station and also they have dealt with Sewage System explaining the process description of moving bed bio film reactor (MBBR) with figure in Chapter 2.7.1.1 showing the figure as Figure 2-7 and also regarding storm water management, solid waste

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generation and disposal, rainwater harvesting system. They have also dealt with the manpower required for construction and also for operation and also the nature of road and how they will have to form the same etc as well. They have also dealt with the description of environment in Chapter 3 and they have given the study area and period as 3.2 and provided the area of study with a legend at Page 78 of the EIA Report and the figure shows as follows:-

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159. They have also mentioned in the methodology for collection of primary data and secondary data in Table 3.3.1 and 3.3.2 respectively. They have also provided the project location and connectivity and sensitive of locations etc. for the purpose of collection of datas. The land use pattern of the study area was explained in Chapter 3.5.1 with the map shown in Page 83 of the EIA Report as follows:-

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160. They have also given the land use pattern of the project site in Table 3-5. They have also conducted several studies on soil in respect of seismology, geology etc. and also given the figure of the areas surrounding this aspect in a map at Page 89 and 90 of the EIA Report as follows:-

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161. They also had shown the soil sampling locations and nature of the soil study and mean temperature flow, rainfall study, humidity study, wind direction study etc. in detail. They have also shown the

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study area and other aspects and the location of the project site in a map at Page 99 of the EIA Report as follows:-

162. They have also shown the Ambient Air Quality monitoring techniques, selection of sample locations and given the same in Tables as follows:-

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163. The fugitive area was also provided by providing a map at Pg.102 of the EIA Report as follows:-

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164. They have also given the noise level measurement with figure explained in Page 105 to 108 of the EIA Report as follows:-

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Table 3-25: Traffic Volume in PCU per day Location Distance Direction Volume Count (km) HMW LMV 2/3

Wheelers

Near Bhogapuram (T1) 4.5 NNW 2,880 1,344 528 Near Savaravelli (T2) 0.8 WSW 3,240 1,248 564 Near Allupeta (T3) 6.2 W 2,448 1,368 600

Source: Classified Traffic Volume Count, GreencIndia Consulting Private Limited, Ghaziabad.

It was observed that there is a high traffic volume of HMVs. The traffic destination is either towards Vizianagaram or nearby areas as the road connects NH-43 & NH-45 towards Visakhapatnam and further connects to other major cities. The movement of heavy vehicles in this area comprises of mainly buses and good carriers on long distance haul."

165. They have also given the details of anticipated environmental impact and mitigation measures, Environmental Management Plan etc. in detail required under the EIA Notification. It will be seen from the report that they have taken into consideration all necessary things with anticipated pollution or impact that is likely to be caused on account of establishment of the project in that area and given the mitigation measures as well as required under the EIA Notification, 2006 and EIA Guidance Manual for Airports and CPCB Guidelines.

166. These aspects have been considered by the Hon"ble Apex Court in Hanuman Laxman Aroskar Vs. Union of India & Ors. (2020) 12 SCC 1 wherein, the Hon"ble Apex Court categorically held that maximum noise pollution or other air pollution is likely to be caused in the runway at the taking off and landing points with upto the height of thousand feet and that will be treated as funnel area for assessing the environmental impact on noise and Ambient Air Quality.

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167. In this case, the Point - N2 and N6 shown in the figure represents the points having maximum pollution impact on account of noise and air at the landing and taking off points, upto the height of 1000 M and that is within the study area of the maximum distance as required under the EIA Notification, 2006 and the EIA Guidance Manual for Airports and also the CPCB Guidelines.

168. So, the submission made by the counsel for the appellant that no proper noise level monitoring or air pollution monitoring was conducted, is not acceptable. The Notification relied on by the learned counsel for the appellant viz., S.O. 1589 (E) was later superseded by Notification S.O. 84 (E) dated 14.01.2010 and further superseded by Notification No. GSR No.751 (E) dated 30.09.2015. A reading of those notifications will go to show that they are only dealing with the height to be maintained to avoid obstruction due to higher level building etc. and that is nothing to do with the Ambient Air Quality or Noise Level study. Those notifications are extracted below for the purpose of better understanding.

"S.O.1589(E).-- In exercise of the powers conferred by section 9-A of the Aircraft Act, 1934 (22 of 1934) and supersession of the notification of the Govt. of India in the Ministry of Civil Aviation No. S.O. 988 dated the 5th January, 1988, the Central Govt., being of opinion that it is necessary and expedient so to do for the safety of aircraft operations hereby direct that:-

1) No building or structure shall be constructed or erected, or no tree shall be planted on any land within the limits specified in Annexure I to this notification in respect of Civil and Military Aerodromes existing as listed in Annexure VII to this notification, aerodromes to be constructed or developed and notified by the Competent authority in future where there is any building, structure or tree on such land, the owner or the person having control of such building, structure or tree shall demolish such building or structure or, as the

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case may be, cut such tree, forthwith but not later than a period of one month from the date of publication of this notification in the Official Gazette.

2) No building or structure higher than the height specified in Annexure II to this notification shall be constructed or erected, or no tree which is likely to grow or ordinarily grows higher than the height specified in the said Annexure II, shall be planted, on any land within a radius of twenty kilometers* from the aerodrome reference point (ARP) of the aerodromes listed in Annexure VII to this notification excluding the land covered by Annexure I to this notification or aerodromes which would be constructed or developed and notified by the competent authority from time to time, where the height of any building or structure or tree on such land is higher than the height specified in the said Annexure II, the owner or the person having control of such building, structure, or tree shall forthwith but not later than a period of one month from the date of publication of this notification in the Official Gazette, reduce the height there of so as not to exceed the specified height. * Note:- Refer Annexure II para 1.8

3) Airports Authority of India shall be responsible for issuing the NOC on behalf of Central Govt. for any construction in respect of all civil aerodromes in India, including the State Govt. aerodromes and the private aerodromes where civil commercial flights have been operating and listed at Annexure VII. In case of a private aerodromes where commercial operations are not taking place, the issue of NOC shall be dealt by AAI provided the aerodrome operator makes a specific request with the confirmation from the local authorities/State Govt. under whose jurisdiction the aerodrome is located indicating that it is in agreement with such proposal and have mechanism in place for ensuring the implementation of height cleared through NOC for protection of obstacle limitation surfaces. For military aerodromes, defence authorities shall be responsible for issue of NOC. Defence authorities shall follow the guidelines as specified in this notification in addition to any other additional restriction as deemed fit for issue of NOC

4) State Govt authorities shall be responsible for taking action in respect of any building, tower, installation or chimney that have been constructed/erected, or any tree that has been grown, in violation of the provisions of this notification. Any structures constructed in the surfaces after one month of issue of this notification should automatically be considered as illegal and has to be dealt with by the District Administration / local authorities for removal/reduction of height.

5) A certified copy of the construction of the building shall be deposited with AAI and State Govt. on completion of the project. The State Govt. authorities shall be responsible to ensure that heights granted as per HOC issued by AAI are fully complied with

[F. No. AV-20036/66/2000-AAI] R.K. SINGH. Jt. Secy."

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"MINISTRY OF CIVIL AVIATION NOTIFICATION New Delhi, the 14th January, 2010 S.O. 84(E).—In exercise of the powers conferred by section 9-A of the Aircraft Act, 1934 and in supersession of the notification of the Government of India in the Ministry of Civil Aviation number S.O. 1589(E), dated the 30th June, 2008, the Central Government being of opinion that it is necessary and expedient so to do for the safety of aircraft operations hereby direct as under:

1. No building or structure shall be constructed or erected and no tree shall be planted on any land within the limits specified in Annexure I and II from Civil and Defence Aerodromes and Aeronautical communication stations listed in Annexure IIIA, IIIB, IIIC, IIID and IIIE without obtaining 'No Objection Certificate'.

2. For the purpose of issuing of No Objection Certificate referred to in paragraph 1 (a) the Airports Authority of India shall be responsible for issuing the No Objection Certificate on behalf of Central Government in respect of all civil aerodromes in India including the State Government aerodromes and the Private aerodromes where civil commercial flights are operating as listed at Annexure IIIA; (b) for Defence aerodromes, defence authorities shall be responsible for issuing No Objection Certificate in accordance with this notification and subject to any other restriction or condition which such authorities deemed fit for issuing the 'No Objection Certificate'.

3. No building or structure higher than the height specified in Annexure I and II shall be constructed or erected and no tree which is likely to grow or ordinarily grows higher than the height specified in the said Annexure I and II shall be planted on any land within a radius of twenty kilometers from the aerodrome reference point.

4. In respect of Aerodromes which are required to be constructed or developed where the height of any existing building or structure or tree on any land within the limits specified in Annexure I and Annexure II, exceeds the height specified in this notification, the owner or the person having control of such building, structure or tree shall reduce the height thereof within a period of one month from the date of publication of notification in this regard so as not to exceed the specified height.

5. Where the owner or the person having control over the building or structure or tree fails to reduce the height within the period specified in para 4, the State Government authorities or any other concerned authority shall responsible for taking action in respect of such building, structure or tree; and any building or structure including tower, installation or chimney that is constructed or erected or any tree that is grown in violation of the provisions contained in this notification shall be considered as illegal and the authorities referred to above shall be responsible for removal or reduction of height thereof.

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6. In case of Government and Private civil aerodromes and airstrips specified in Annexure III B where, at present, civil schedule operations are not taking place or there is no possibility of such operations taking place for reasons including airspace restrictions, permanent structures or terrain penetrating the obstacle limitation surface, national security, etc., the provisions of this notification shall be applicable on the basis of the aerodrome reference code and operational usage of that aerodrome or strip.

7. Each Aerodrome Operator shall be responsible for preparing zoning maps in conformity with the provisions of this notification with digitized data in WGS84 Coordinates indicating all the latest features around the airport. F. No. AV-20036 '66,2000-AA11 ALOK SINHA, Jt. Secy."

"MINISTRY OF CIVIL AVIATION NOTIFICATION New Delhi, the 30th September, 2015 G.S.R.751 (E).--The Central Government, being of opinion that it is necessary and expedient to do so for the safety of aircraft operations, proposes to make the following certain rules, in exercise of the powers conferred by sub-section (1) and clause (o) and clause (r) of sub-section (2) of section 5 read with section 9A of the Aircraft Act, 1934 (XXII of 1934) (hereinafter referred to as the said Act), and in supersession of the Ministry of Civil Aviation notification number S.O.84(E), dated the 14th January, 2010 published in the Gazette of India, Part II, section 3, sub-section (ii), except as respect things done or omitted to be done before such supersession. The objections or suggestions on the draft S.O. were called from the stakeholders and are considered by the Government to the extent admissible. In the public interest the rules are notified by seeking exemption from putting the rules again in the public domain.

1. Short title and commencement.-- (1) These rules may be called the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015. (2) They shall come into force on the date of their publication in the Official Gazette.

2. Application .-- These rules shall apply to all civil and defence aerodromes listed in Schedule III to Schedule VII, as amended from time to time.

3. Definitions.-- In these rules, unless the context otherwise requires, -- (i)

"Act" means the Aircraft Act, 1934 (XXII of 1934); (ii) "aerodrome" includes civil and defence airports, airstrips, communication, navigation and surveillance facilities used for the aeronautical purposes in India; (iii) "aerodrome elevation" means the elevation of the highest point of the landing area as specified in Schedule III to Schedule VII; (iv) "Authorised officer" means the officer authorised by the defence authorities for the purposes of these rules; (v) "Airports Authority" means the Airports Authority of India constituted under section 3 of the Airports Authority of India Act, 1994 (55 of 1994); (vi) "Colour Coded

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Zoning Map" of an airport means the map, prepared and certified by the Airports Authority indicating the areas around the airport in different colour coded grids with the permissible heights above mean sea level for the purpose of aerodrome safeguarding and a model Colour Coded Zoning Map of Navi Mumbai International Airport is given at Schedule IX; (vii) "Designated officer" means the officer of Airports Authority of India responsible for processing and/or issuance of No Objection Certificate as specified in Appendix M of Schedule VIII;

(viii) "No Objection Certificate" means the certificate issued under rule 5; (ix)

"structure" includes building, mast, tower, chimney, poles, transmission lines, elevated roads or viaducts or bridges and elevated railway lines, wind farms and all other man-made structures; (x) Words and expressions used but not defined in these rules shall have the meanings respectively assigned to them in the Act.

4. Restrictions on constructions, erections, trees, etc.-- (1) No structure shall be constructed or erected, or any tree planted or grown on any land within a radius not exceeding twenty kilometers from the Aerodrome Reference Point of the civil and defence aerodromes, as specified in Schedule III to Schedule VII, without obtaining a No Objection Certificate for the height clearance, except in cases specified in subrule (2) of rule 7. (2) No structure shall be constructed or erected, or any tree planted or grown on any land within the areas specified in Schedule I of the civil and defence aerodromes, as listed in Schedule III to Schedule VII, except for essential navigational aids and other installations required for aeronautical purposes. (3) No structure higher than the height specified in Schedule II, shall be constructed or erected and no tree, which is likely to grow or ordinarily grows higher than the height specified in the said Schedule shall be planted on any land within a radius of twenty kilometers from the Aerodrome Reference Point (4) The level roads and level railway lines within one kilometer of the airport boundary wall shall also be subject to issuance of the No Objection Certificate.

5. Issuance of No Objection Certificate.-- (1) The No Objection Certificate in respect of civil aerodromes shall be issued by the designated officer on behalf of the Central Government in respect of civil aerodromes. (2) The No Objection Certificate in respect of defence aerodromes shall be issued by the authorised officer in accordance with Schedule I and Schedule II, subject to such other conditions as the said authorised officer may deem fit. (3) In case of State owned and private aerodromes, licensed by the Directorate General of Civil Aviation, the No Objection Certificate for the protection of obstacle limitation surfaces (OLS) at such airports shall be issued by the designated officer and the procedure in cases of State owned and private aerodromes, not licensed by the Directorate General of Civil Aviation, shall be regulated in the manner as specified in rule

13. (4) The application for issuance of No Objection Certificate in respect of civil aerodromes, shall be made by the applicant to the designated officer through the

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No Objection Certificate Application System (NOCAS), accessible on the website of the Airports Authority at www.aai.aero.

6. Issuance of Colour Coded Zoning Map.-- The Colour Coded Zoning Maps (CCZM) shall be issued by the Airports Authority based on the latitude & longitude of the area in respect of civil aerodromes which shall indicate through different colour coded grids, the permissible heights in the areas around the airport, falling within the radius not exceeding twenty kilometers from the Aerodrome Reference Point. The CCZM shall be available at AAI website www.aai.aero.

7. Approval for construction of buildings, structures, etc.-- (1) After considering the No Objection Certificate issued by the designated officer or the authorised officer, the concerned Local, Municipal or Town Planning and Development Authorities shall approve the construction of buildings or structures not exceeding the Permissible Top Elevation. Local, Municipal or Town Planning and Development Authorities shall also consider the existing building regulations or bye-laws or any other law for the time being in force before approving the construction of buildings or structures. (2) In cases of aerodromes where the Colour Coded Zoning Maps has been issued, the Local, Municipal or Town Planning and Development authorities shall, in accordance with the height specifications provided in such Colour Coded Zoning Maps, approve the construction of the structures, as per the existing building regulations or bye laws or any other law for the time being in force: Provided that no such approval shall be given by the Local, Municipal or Town Planning and Development authorities for sites which lies in approach, take off and transitional areas of an airport or in any other area, marked in the Colour Coded Zoning Map for the compulsory obtaining of No Objection Certificate from the designated officer or authorised officer. (3) The Local, Municipal or Town Planning and Development authorities shall certify on the sanction plan that the Floor Space Index or Floor Area Ratio and the related height of the building or structure is within the permissible elevation as indicated in the Colour Coded Zoning Map for the given site. (4) The Local, Municipal or Town Planning and Development Authorities shall submit the details of structures approved under sub-rule (1) and sub-rule (2) to the concerned designated officer or the authorised officer within a period of thirty days from the date of such approval.

8. Clearances for siting towers of fixed wireless stations.-- (1) The clearances in respect of siting towers of fixed wireless stations shall be issued by the Standing Advisory Committee on Radio Frequency Allocation (SACFA) of the Ministry of Communication & Information Technology, Government of India, taking into consideration the heights above mean sea level specified in the Colour Coded Zoning Map. (2) The Standing Advisory Committee on Radio Frequency Allocation (SACFA) of the Ministry of Communication, Government of India, shall submit the details of siting towers of fixed wireless stations approved under

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sub-rule (1) to the concerned designated officer or the authorised officer within a period of thirty days from the date of such approval.

9. Processing of No Objection Certificate cases.-- (1) Processing of NOC cases in respect of civil aerodromes shall be carried out at nine Airports Authority offices one each at Delhi, Kolkata, Mumbai, Chennai, Guwahati Hyderabad, Bengaluru, Ahmedabad and Nagpur airports. (2) The designated officer available at the offices specified in sub-rule (1) shall be responsible for the processing of applications and issue of No Objection Certificate and/or issue authorization for issuance of NOC for height clearance by concerned designated officer with respect to the civil aerodromes. (3) A Panel of Chartered Engineers and Surveyors may be assigned by the Airports Authority to carry out physical verification of details of Site Elevation and Coordinates as submitted by the applicant. The expenses of the same shall be borne by the applicant. (4) The officer in-charge of the corporate office at the headquarters of the Airports Authority in New Delhi shall supervise the functioning of the regional and station level offices.

10. Duties of designated officer.-- (1) The designated officers, specified in Appendix M of Schedule VIII, shall be responsible for issuance of No Objection Certificate in respect of civil aerodromes and shall coordinate with the respective Local, Municipal or Town Planning and Development authorities in granting approval for construction of buildings or structures. (2) The designated officer shall forward the copy of NOCs issued by him under sub-rule (1) above to the concerned airport operator and respective Local, Municipal or Town Planning & Development authorities.

11. Appellate Committee.-- (1) There shall be an Appellate Committee consisting of the following, namely:- (a) Joint Secretary (Airports), Ministry of Civil Aviation, Government of India - Chairperson; (b) Joint Director General of Civil Aviation (Aerodrome), Directorate General of Civil Aviation - Member; (c) Member (Air Navigation Services), Airports Authority of India - Member; and

(d) One technical expert having knowledge in the field of communication or air traffic management - Member. (2) If any person or Local, Municipal or Town Planning and Development authorities or any airport operator is aggrieved with the decision of the Designated officer, such person or entity may appeal to the Appellate Committee for redressal of his/their grievances with respect to the height permissible under these rules. (3) The cases for reference to the Appellate Committee specified in sub-rule (2) shall be received and processed by the corporate office at the headquarters of the Airports Authority in New Delhi.

12. Responsibilities of local authorities and airport operators.-- (1) For the effective verification, monitoring and controlling the obstructions around the airports, it shall be the responsibility of the Local, Municipal or Town Planning and Development authorities and the airport operator to ensure that the height of

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the structures and their locations are in accordance with the approved building plans and the No Objection Certificate issued by the concerned designated officer or the authorised officer. (2) For the purposes of sub-rule (1), the Local, Municipal or Town Planning and Development authorities and the airport operator shall develop appropriate mechanism with necessary trained manpower and equipment so as to verify the height of the structures, site elevations and site location or coordinates in World Geodetic System 1984 (WGS84).

13. Procedure to be followed in case of State owned and private airports not licensed by Directorate General of Civil Aviation.-- (1) In case of State owned or private aerodromes not licensed by the Directorate General of Civil Aviation, the concerned State Government shall be responsible for the protection of obstacle limitation surfaces at such airports: Provided that the designated officer shall give guidance to the State Government on the protection of obstacle limitation surfaces, whenever such guidance is sought by the concerned State Government.

14. Development and up gradation of aerodromes.-- (1) The approved master plan of the aerodromes shall be considered for drawing and protecting the various obstacle limitation surfaces to ensure its development and future expansion or up-gradation. (2) The designated officer or the authorised officer, before issuing the No Objection Certificate in respect of development or upgradation of any aerodrome (including its runway dimension), shall take into consideration the proposed communication, navigation and surveillance (CNS) facilities and the procedure for Air Navigation Service Operations (PANS-OPS) for height clearance at a given airport. (3) Necessary consultation with the concerned stakeholders shall be carried out by the airport developer, airport operator or by the Air Navigation Service provider, as the case may be, at the time of development of master plan of a Greenfield airport or planning of major airport expansion or the installation of new communication, navigation and surveillance facilities at the existing airports. (4) The aerodrome developer or operator and ANS provider, as the case may be, shall submit the approved master plan of the aerodrome and the proposed development or up gradation of any aerodrome (including its runway dimensions, communication, navigation and surveillance (CNS) facilities and the procedure for Air Navigation Service Operations (PANS-OPS) to the concerned designated officer).

15. Procedure in case of violations.-- The cases of violations where the height of any existing building, structure or tree on any land within the limits specified in rule 4 exceeds the height specified in Schedule I and Schedule II, or any other violation arising out of non-compliance of the provisions of these rules, shall be dealt in accordance with the provisions of the Aircraft (Demolition of Obstructions caused by Buildings and Trees etc.) Rules, 1994.

16. Savings.--Nothing in these rules shall affect the height clearances assessed and duly issued under the notifications issued by the Government of

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India in the Ministry of Civil Aviation vide notification numbers S.O. 84(E) dated the 14th January, 2010, and S.O 1589(E) dated the 30th June, 2008, during their assessment validity period of eight years for the buildings and twelve years for the structures such as masts, chimney and towers etc., within which the applicants have to complete the structures and obtain the completion certificate from the concerned authorities:

Provided that in cases where the construction work has not started during the initial validity period of five years for the buildings or within seven years for the structures such as mast, chimney, etc., revalidation shall not be considered and the height of such buildings or structures shall be reassessed in accordance with the provisions of these rules."

169. So under such circumstances, the submission made by the learned counsel for the appellant that there was no proper study conducted in respect of Ambient Air Quality and Noise Level Monitoring are without any basis, in view of the details given by the project proponent in their EIA Report and also the explanations given by them in their counter statement and also explained by the Hon"ble Apex Court in Hanuman Laxman Aroskar Vs. Union of India & Ors.

(2020) 19 SCC 1.

170. Chapter - 4 of the EIA Report deals with anticipated environmental impacts and mitigation measures, where they have dealt with the impact rating for Topography and Geology during Construction Phase and mitigation, impact on soil during operation phase and mitigation, aircraft emissions, air dispersion modelling, impacts on air during operation and construction phase, estimated vehicular emissions, materialogical data, highest resultant Ground Level Concentration (GLC), mitigation measures for all those things,

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noise environment, impact during construction phase as well as operation phase and its predicted localities and the mitigation measures, impact on water during construction as well as operation phase and the sources and its mitigation measures, waste management of all types were dealt with in detail in this chapter.

171. Chapter - 5 of the EIA Report deals with analysis of alternative, where they have dealt with the area that has been considered by them and reason for accepting this area for this purpose. Chapter - 6 deals with the environment monitoring plan which deals with all these aspects including the public hearing, concerns in detail. Chapter - 7 deals with the additional studies conducted on the basis of the grievance raised by the public at the time of public hearing and other aspects in detail. They also compared with the situation of similar airports in this country as well as all over the world and necessary mitigation steps taken by them in detail. Chapter - 8 deals with the project benefits which deals with the socio-economic conditions. Chapter - 9 deals with the Environment Management Plan, answering all these aspects in detail. Chapter - 10 deals with the conclusion and Chapter - 11 deals with the disclosure of consultant.

172. A perusal of Chapter - 11 of the EIA Report will go to show that the M/s. GreencIndia Consulting Private Limited is an accredited agency approved by the MoEF&CC and NABET QCI for number of projects including airport projects. They have given the

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details of the experience of each person who are dealing with the subject and it is on that basis, the accreditation was granted. The learned counsel appearing for the appellant wanted to project Mr. Rahul Singh, the Environment Coordinator who prepared the report, about his qualification and according to the applicant, he did not have any experience in airport allied projects. They relied on certain link relating to this person. But, we are not expected to go into those aspects in detail in the absence of said person, as without hearing him, it is not proper for this Tribunal to come to the conclusion that he is not having any experience in this field.

173. It is true that some of the datas relied on by the appellant will go to show that certain EIA Reports prepared were returned by the MoEF&CC for want of certain details, but the explanation given by the project proponent and the State of Andhra Pradesh will go to show that after rectifying those defects, the MoEF&CC had accepted the same and clearances were granted for those projects which were prepared by the same agency and they also relied on certain datas to show that the same agency had prepared the EIA Report for the purpose of Goa International Airport which was ultimately approved by the Hon"ble Apex Court in Hanuman Laxman Aroskar Vs. Union of India (2020) 19 SCC 1.

174. So under such circumstances, we do not find any merit in the submissions made by the counsel for the appellant that the EIA Report was prepared by the person who is not qualified for

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preparing the report for this project. The dictums relied on by the appellant are not applicable to the facts of this case, as the agency which prepared the EIA Report was not an accredited agency either by the QCI NABET and the MoEF&CC in that case and that was taken as a ground for setting aside the EIA Report and consequently set aside the Environmental Clearance (EC) as well. But that was not the case in this case for consideration. In this case, the EIA Report was prepared by an accredited agency and such reports prepared by the same agency in several airport projects were approved by the MoEF&CC and Courts, wherever the Environmental Clearances (ECs) were challenged.

175. So under such circumstances, there is no merit in the submission made by the counsel for the appellant that the EIA Report cannot be relied on for the purpose of approving the Environmental Clearance (EC) and there was non-application of mind on the part of the recommending as well as issuing authorities in this regard has no basis and the same is rejected.

176. There is some force in the submission made by the counsel for the appellant that there was some discrepancy in the quantity of water which required as per the EIA Report for the project projected by the project proponent and the quantity permitted by the MoEF&CC while issuing the Environmental Clearance (EC). As per the EIA Report and also as per the submissions made by the counsel for the project proponent that they require only 647.9 KLD of water,

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out of which, 153.9 KLD will be fresh water and 494 KLD will be recycled water. They have also mentioned that for construction, they require 70 KLD, but they will be procuring the same by outside agencies and they are not depending on the municipality or other agencies for this purpose. In the Environmental Clearance (EC), they have been permitted to use 1,576.8 KLD, out of which, 872.5 KLD of fresh water which they proposed to obtain from Vizianagaram Municipal Corporation. But it may be mentioned here that this is the only mistake committed by the authorities. It cannot be taken as a ground for setting aside the Environmental Clearance (EC) as such, instead this Tribunal can restrict the requirement of water for the purpose of the project at 647.9 KLD, of which 153.9 KLD of fresh water and 494 KLD of recycled water and 70 KLD for construction purpose and 1663 KLD for civil work and that can be procured only through private water tankers and that will be sufficient for the purpose of sustaining the Environmental Clearance (EC), instead of setting aside the same on this minor ground.

177. As regards the submission made by the counsel for the appellant that Airbus - A380 has decided to stop the manufacturing and as such there is no necessity for this project is also without any basis. It is true that the airport was conceived for accommodating Airbus - A380 type as well, which is supposed to be the biggest aircraft so that any aircraft of lesser size also can be accommodated in that airport. Merely because they have mentioned that they are

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projecting the airport for the purpose of accommodating Airbus - A380 alone will not be sufficient to come to the conclusion that this cannot be used for any other aircraft and as such, the purpose of project has become redundant. On analyzing all these aspects, we feel that there is no merit in the appeal, warranting interference of the Environmental Clearance (EC) granted as such, except restricting the requirement of water at 647.9 KLD, of which 153.9 KLD will be fresh water which they are going to obtain from Vizianagaram Municipal Corporation and 494 KLD of recycled water and for construction purpose 70 KLD for domestic use which could be met through private water tankers and if they want to exceed this limit, they have to apply to the concerned authorities namely, the MoEF&CC for the purpose of amending the conditions for use of more water.

178. As regards the public hearing is concerned, the matter was taken up on 13.04.2017 but since the Expert Appraisal Committee was not satisfied with the explanation given for the public hearing concern, it was adjourned to 14.04.2017 and on that date, they have made presentation of the details of the public concern raised by each persons and the reply given by them and the action plan to the meet the same and only after considering the same, they have recommended the project. So, that shows how the minute things were considered by the Expert Appraisal Committee before recommending the project. Further, it will be seen from the concern raised by each person"s is only regarding the resettlement and

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rehabilitation process and also the socio-economic issues which were clearly dealt with by the project proponent in the EIA Report and also they explained to the Expert Appraisal Committee, when this was projected by them at the time of appraisal and only thereafter, the Expert Appraisal Committee had recommended the project and the MoEF&CC had issued the Environmental Clearance (EC). Further, even after recommending the project by the Expert Appraisal Committee, the MoEF&CC has taken some more time to collect details regarding the pendency of the cases and availability of land and only after getting details, they have issued the Environmental Clearance (EC) as well. Further, the conditions imposed both specific as well as general will go to show that each and every aspect including the pendency of the litigations have been taken note of by the MoEF&CC and the Expert Appraisal Committee and only thereafter, the same has been granted. So under such circumstances, there is no merit in the submission made by the counsel for the appellant that the Environmental Clearance (EC) granted is without proper application of mind and the same is liable to be set aside and as such, we reject that contention.

179. So, in view of the discussions made above, we do not find any reason to set aside the Environmental Clearance (EC), but we are only modifying the water requirement as mentioned in the Environmental Clearance (EC) in tune with the EIA Report namely,

647.9 KLD, of which 153.9 KLD is fresh water and 494 KLD by

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recycled water and 70 KLD for domestic purpose at the time of construction and 1663 KLD for civil work and the mode of collection of the same as explained by the project proponent instead of 1,576.8 KLD permitted by the MoEF&CC in the Environmental Clearance (EC) and that will meet the ends of justice. If the project proponent requires more quantity of water than permitted by us as per this Judgment, they will have to get modification of the conditions by applying to the MoEF&CC and in turn, the MoEF&CC has to consider the same and take appropriate decision in this regard, after due diligence.

180. Further, under Section 20 of the National Green Tribunal Act, 2010, while considering the establishment of project, this Tribunal has to apply the principles viz., "Polluters Pay", "Precautionary Principle" and "Sustainable Development" and if the Tribunal is satisfied that all the precautionary principles were applied to protect environment and the impact of the project is negligible, then applying the principle of "Sustainable Development", establishment of the project has to be upheld. This was the dictum laid down by the Hon"ble Apex Court in contra of decision when conflict arises between sustainable development and environmental issues.

181. The points are answered accordingly.

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182. In the result, the appeal is allowed in part and disposed of as follows:-

(i) We do not find any reason to set aside the Environmental Clearance (EC), but we are only modifying the water requirement as mentioned in the Environmental Clearance (EC) in tune with the EIA Report namely,

647.9 KLD, of which 153.9 KLD is fresh water and 494 KLD by recycled water and 70 KLD for domestic purpose at the time of construction and 1663 KLD for civil work and the mode of collection of the same as explained by the project proponent instead of 1,576.8 KLD permitted by the Ministry of Environment, Forests & Climate Change (MoEF&CC) in the Environmental Clearance (EC) and that will meet the ends of justice.

(ii) If the project proponent requires more quantity of water than permitted by us as per this Judgment, they will have to get modification of the conditions by applying to the Ministry of Environment, Forests & Climate Change (MoEF&CC) and in turn, the MoEF&CC has to consider the same and take appropriate decision in this regard, after due diligence.

(iii) Considering the circumstances, parties are directed to bear their respective cost in the appeal.

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(iv) The Registry is directed to communicate this order to the Ministry of Environment, Forests & Climate Change (MoEF&CC) for their information and compliance.

183. With the above observations and directions, this appeal is allowed in part and disposed of accordingly.

Sd/-

......................................J.M.

(Justice K. Ramakrishnan)

Sd/-

.....................................E.M.

(Dr. Satyagopal Korlapati)

Appeal No.18 of 2020 (SZ),

09^th December, 2021. AM & Mn.

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