SUPREME COURT HOLDS ENVIRONMENTAL CLEARANCE IS A MUST FOR SETTING UP GREENFIELD AIRPORT IN SILCHAR, ASSAM

INTRODUCTION

A three- Judge Bench of the Supreme Court comprising of Justice Dr Dhananjaya Y Chandrachud, Justice J.B. Pardiwala and Justice Manoj Mishra passed an Order dated 06.05.2024 in Civil Appeal Nos 4603-4604 of 2024 in Tapas Guha & Ors Vs. Union of India & Ors. and held that the necessity for Environmental Clearance acts as a vital safeguard against the uncontrolled exploitation of natural resources and upholds the principles of sustainable development, benefiting both present and future generations, and that neglecting these norms would not only undermine the integrity of environmental governance but also pose a risk of long-term environmental degradation and societal discord.

FACTS

1) The Ministry of Civil Aviation of the Union Government decided to build a Commercial Airport at Silchar in Assam, as the existing defence Airport ws not suitable for domestic civilian operations.

2) The Government of Assam selected three tea estates—Doloo, Khoreel, and Silcoorie—as potential sites for a new Airport. After a feasibility study was conducted by the Airport Authority of India (AAI), Doloo was chosen as the location for the Greenfield Airport. Initially, the land identified for the Airport covered approximately 335 hectares. However, AAI requested additional land, leading to the identification of an adjacent area within the same tea estate, measuring 69 hectares. This additional area also contained 173 dwelling units. In total, the combined land area for the Airport Project admeasured 404 hectares.

3) The Appellants, Tapas Guha and others, brought their concerns to the attention of the Ld. National Green Tribunal, highlighting the absence of Environmental Clearance, despite the mandate of the Notification dated 14.09.2006 of the Ministry of Environment and Forests, that required the Authority to take such clearance for Airport construction. The Appellants’ grievances included:

i) Extensive eviction resulting in the uprooting of 41,95,909 tea bushes, over 10,000 shade trees, and land acquisition in two divisions of the Tea Estate.

ii) Ongoing site clearance of 325 hectares involving massive uprooting and felling of trees.

iii) Utilization of Section 144 Code of Criminal Procedure, 1973 (Cr. P.C) (Power to issue order in urgent cases of nuisance or apprehended danger) during eviction, employing 1050 bulldozers and excavators to clear 2500 bighas for the Airport.

iv) The Airport Project being Category-A, with site clearance was already initiated without prior Environmental Clearance, thus violating the Environmental Impact Assessment (EIA) Notification, 2006.

v) Furthermore, the proposed Airport fell under Category ‘A’, necessitating scoping and public consultation as per the EIA Notification, 2006. However, post-eviction, there was no “public” left in the affected areas for consultation.

4) The Ld. National Green Tribunal (NGT), vide Order dated 25.01.2024, dismissed the Original Application. The NGT was of the view that an EIA Report was awaited and the Environmental Clearance for the Airport was also not granted. The NGT concluded that the Appellants’ plea for an Order of restraint on granting site clearances and in-principle approvals lacked merit at that stage. The NGT also noted that the inclusion of a clause under the head ‘Environment Clearances’ in the aforementioned Notification would not automatically make it mandatory for the purposes of EIA study.

5) Aggrieved by the Order dated 25.01.2024 of the NGT, the Appellants filed Civil Appeal Nos 4603-4604 of 2024 before the Supreme Court.

SUPREME COURT ANALYSIS

The Apex Court vide Order dated 06.05.2024, made the following observations:

(I) The Supreme Court observed that it is evident that an Environmental Clearance is required for the project of setting up an Airport and no such clearance has been issued in the present case at hand. The Paragraph 2 of the Notification dated 14.09.2006 was as follows:

“2. Requirements of prior Environmental Clearance (EC):

The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category ‘A’ in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category ‘B’ in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:

(i) All new projects or activities listed in the Schedule to this notification;

(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;

(iii) Any change in product – mix in an existing manufacturing unit included in Schedule beyond the specified range.”

(II) As per the Order of the Apex Court dated 22.04.2024, the Secretary of the District Legal Services Authority, Cachar, was instructed to visit the site and furnish a report to this Court regarding:

“(i) Whether any felling of shade trees had occurred.

(ii) Whether any eviction had been carried out at the site.

(iii) The nature of activities conducted at the site.”

(III) Further, in compliance with the directives of the Supreme Court, Ms. Salma Sultana, a Judge in the District Judiciary in the State of Assam, serving as Secretary to the District Legal Services Authority Cachar, submitted a Report dated 27.04.2024. The Report highlighted that 89 shade trees were identified as cut down. Ms. Sultana noted that the entire area primarily comprised of dense forest, dense foliage and thick bushes, making it difficult to observe other potentially cut-down shade trees. Furthermore, the Report included information provided by Circle Officer, Shri Arunjyoti Das, stating that 41,95,909 tea bushes have been uprooted.

(IV) The State Government’s argument, as presented in their Affidavit of 22.04.2024, asserted that the removal of tea bushes was a routine practice, integral to regular tea cultivation, and does not necessitate prior Environmental Clearance. To substantiate this claim, reference was made to a communication from the Member Secretary of the State Environment Assessment Committee (SEAC) in Assam. This communication noted that in tea gardens, tea bushes and shade trees are routinely removed and uprooted when the trees become old and tea production is affected. It is noteworthy to mention that the Letter dated 22.04.2024, supporting this argument, was considered self-serving as it was prepared on the same date as the Affidavit.

(V) The Bench further observed that, the NGT failed to fulfill its adjudicatory duties by neglecting to verify the authenticity of the Appellants’ grievances. As an expert body established under a statute enacted by Parliament, tasked with safeguarding the environment, it was incumbent upon the Tribunal to first and foremost ascertain the validity of the Appellants’ complaints.

(VI) The Tribunal, however, merely dismissed the Original Application (OA) without delving into the matter, basing its conclusion solely on the absence of an Environmental Clearance. Had the Tribunal conducted even a prima facie inquiry, the facts presented before the Apex Court would have been brought to light. The Bench held that the superficial dismissal of the case by the NGT not only indicates a lack of due diligence but also showcases a disregard for the seriousness of the environmental issues raised by the Appellants. Further, the Bench held that such non-chalant, if not indifferent, approach to adjudication not only would undermine the integrity of the judicial process but also compromise the very essence of the NGT’s establishment – to protect the environment, ensure sustainable development, and facilitate the prompt resolution of cases pertaining to environmental protection and conservation. Such negligence on the part of the Tribunal sets a troubling precedent, eroding public confidence in the effectiveness of environmental governance mechanisms.

(VII) The State Government has submitted an Application for directions before the Supreme Court, requesting the initiation of proceedings against the Appellants, accusing them of misleading the Court into issuing the Order dated 22.04.2024. However, during the proceedings, the Solicitor General mentioned that the Application was not being pursued further.

(VIII) The Apex Court observed that, based on the evidence presented in the records, it was evident that the Authorities involved in this case had contravened the provisions outlined in Paragraph 2 of the Notification dated 14.09.2006, by conducting extensive clearance activities at the site, without obtaining the necessary Environmental Clearance.

ORDER

While the State Government had stressed the importance of establishing a civilian Airport at Silchar, leading to the proposal for a Greenfield Airport spanning 335 hectares with an additional 69-hectare component, it is crucial to recognize that the decision on the location of an Airport also falls within the realm of policy decisions by the Government. However, it is imperative to adhere strictly to the prescribed norms when conducting activities that necessitate Environmental Clearance. Even though policy decisions dictate the establishment of infrastructure such as Airports, compliance with environmental regulations remains paramount. The Bench further held that environmental regulations are crucial precisely because they ensure that developmental projects, like Airport construction, are carried out in a manner that minimizes adverse ecological impacts and protects the environment and local communities. While recognizing the importance of infrastructure development, it is essential that such projects proceed in compliance with environmental laws to prevent irreparable harm to ecosystems and biodiversity. The necessity for Environmental Clearance acts as a vital safeguard against the uncontrolled exploitation of natural resources and upholds the principles of sustainable development, benefiting both present and future generations. Therefore, while the decision to establish an Airport may align with broader policy objectives, it must be implemented within the bounds of legal frameworks designed to safeguard the environment and ensure responsible resource management. Neglecting these norms not only undermines the integrity of environmental governance but also poses risks of long-term environmental degradation and societal discord. The Supreme Court thereby allowed the Appeal of the Appellants and directed that “absolutely no activity shall be carried out in breach of the provisions of the Notification dated 14.09.2006 at the site of the proposed greenfield Airport at Silchar.”

 

Kartik Khandekar

Senior Associate

The Indian Lawyer & Allied Services