KIIT SCHOOL OF LAW

BEFORE THE NATIONAL GREEN TRIBUNAL,

NEW DELHI
IN THE MATTER OF:
BHALACHANDRA BHIKAJI NALWADE.. APPELLANT

Vs.
MINISTRY OF ENVIRONMENT & FORESTS & ORS RESPONDENT
(APPEAL NO. 21 OF 2011)

SUBMITTED BY:
TUSHAR JALAN (1282118)
BBALLB (B), 8th Semester
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TABLE OF CONTENTS

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

2. Statement of Issues ............................................................................................................. 5
3. Arguments ........................................................................................................................... 6
4. Judgement ......................................................................................................................... 10
5. Critical Analysis................................................................................................................ 11

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LIST OF PARTIES

1. Bhalachandra Bhikaji Nalwade

At P. O. Ganpatipule
Taluka/District Ratnagiri
Maharashtra Appellant
AND
1. Ministry of Environment & Forests
Government of India
Through the Secretary Paryavaran Bhawan,
CGO Complex Lodhi Road,
New Delhi 110 003.

2. Maharashtra Pollution Control Board

Through the Member Secretary Kalpatru Point,
3rd& 4th Floor SionMatunga Scheme Road No. 8
Opp. Cine Planet Cinema, Near Sion Circle,
Mumbai (East) 400022.

3. M/s JSW Energy (Ratnagiri) Limited

Ambassador Plaza, 1st Floor Mal Naka,
Ratnagiri 415612 Respondents

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STATEMENT OF FACTS

This appeal is filed by the Appellant being aggrieved by the grant of Environmental Clearance (for
short EC) for the 1200 mw (4x300 mw) coal based Thermal Power Plant (for short TPP) in favor
of M/s JWS Energy Limited at Jaigad, Ratnagiri District, Mahrashtra State, by the Ministry of
Environment & Forests (for short MoEF), Government of India dated 28.6.2010.
It is the case of the Appellant that he is a resident of Ganpatipule Taluka, Ratnagiri District in
Maharashtra and earns his livelihood mainly from mango business and owns mango orchards in
the project affected area. Ratnagiri district produces Alphonso mangoes which is the primary
source of income for the Appellant. The contention forwarded by Appellant alleged that Sulphur
Dioxide which will be emitted by TPP will cause appreciable adverse effect on the quality as well
as quantity of Alphonso mangoes.
It appears that Respondent No. 1 granted EC in favour of Respondent No. 3 for the establishment
of a coal based thermal power plant (1200 mw) at Ganpatipule Taluka and District Ratnagiri,
Maharashtra State. It is the case of the Appellant that he had filed Appeal No. 7 of 2007 before the
National Environment Appellant Authority, New Delhi and the said appeal was dismissed vide
Order dated 12.9.2008. Aggrieved thereby, the Appellant filed Writ Petition No. 388 of 2009
before the Honble High Court of Delhi and the said Writ Petition was disposed of on 18.9.2009
holding that the order passed by the Expert Appraisal Committee is appealable before the NEAA.
In pursuance of the said order, the present appeal is filed.

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STATEMENT OF ISSUES

ISSUE I
Whether the KKVD report was not properly considered by the EAC while recommending for the
grant of EC and whether it is contrary to the directions of the Honble High Court of Delhi?

ISSUE II
Whether the likely impact due to Thermal Power Plant on the Ecosystem was not yet studied and
the same amounts to violation of Precautionary Principle?

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ARGUMENTS
Whether the KKVD report was not properly considered by the EAC while recommending
for the grant of EC and whether it is contrary to the directions of the Honble High Court of
Delhi?
Appellants
I.

The learned counsel from the side of Appellant contends that Expert Assessment
Committee (for short EAC) had not followed the directions of the High Court such as
considering the Dr. Bala Saheb Sawant Konkan Krishi Vidyapeeth Daboli (for short
KKVD) Report. They argued that, the KKVD report was never made available to the EAC
while considering the grant of EC. There is violation of Environment Impact Assessment
Notification 1994 as amended in 2002. The MoEF erred in relying upon the KKVD report
which was inconclusive and does not certify that the proposed project shall not have
irreversible adverse impact on the environment.

II.

The EAC of the Ministry of Environment and Forests has chosen to recommend the project
for approval based on one sided information provided by the project and chose not to
interact with any of the farmers despite the fact that re-examination of the project was done
based on the petition filed by the affected farmers and Ratnagiri Jinda Jagruk Manch. The
sub-group report which became the basis for approval of EAC suffers from serious
deficiencies and short comings being based on wrong assumptions. The secondary studies
relied on by EAC were not done on mangoes by the KKVD. The impact due to generation
of Sulphur dioxide as well as the resultant acid rain (blended with rain and dew) has not
been taken into account. Sensitivity of mango to Sulphur dioxide has not been considered.
The EAC has wrongly concluded that there are no studies on impact of thermal power plant
and thermodynamic efficiency of TPP was not discussed in the EIA or by EAC in its report.
Therefore, the EC granted in favour of respondent No. 3 is arbitrary and illegal and liable
to be set aside.

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Respondents
I.

It was argued by the learned counsel of the respondent that the respondent No. 1 placed
the matter before the Expert Appraisal Committee (Thermal Power) in its 58th, 60th and
62nd meetings held during November 10-11, 2009; December 11-12, 2009 and January
11-12, 2010, respectively. The Expert Appraisal Committee (Thermal Power) have
scientifically viewed the likely impact on Alphonso mangoes before recommending
grant of EC for 4x300mw coal based TPP. The Respondent No. 1 in acceptance of the
recommendations of the Expert Appraisal Committee upheld the EC issued on 17.5.2007
with additional conditions including installation of Flue Gas Desulphurization (FGD).

II.

It was further argued that KKVD Report was not ready since the data are to be gathered
over a period of four years as per the work plan. In view of the above, as directed by the
EAC, the Sub-group was formed to conduct a study and make a report stating that there
is no threat to Alphonso mango trees because of the TPP. The report concluded that
1. Alphonso mango and cashew nut plants are phenotypically similar in all the
parameters estimated suggesting that both the species tolerant to these
concentrations. This is also supported by absence of leafy injury in saplings of
Alphonso mango when exposed to exposure of very high concentrations of SO2
(2132 g m-3). These observations suggest that Alphonso mango is tolerant to much
higher levels of SO2 than those predicted by the model
2. The preliminary data from enclosure experiments conducted also reveal that the
concentrations of SO2 and NOx used have no visible impact on the mango. In fact
these concentrations were never reported from the areas close to old coal fired
thermal power plants. The area is a ghat located close to the tropical seas with
excellent drainage system and receives high rainfall for about 4 to 6 months and there
are no winter inversions. In other words self-purification of atmosphere takes place
and there is no buildup of pollution load.

III.

It was also contended that there are no Alphonso mango orchards elsewhere nearer to
Thermal Power Project where studies could be conducted and analysed. This is a peculiar
situation and in the light of that the KKVD was directed to conduct two phase study i.e.
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one year pre-commissioning stage and three years post commissioning stage. The
KKVD's first annual report has been furnished in April 2009 which was to be followed
by subsequent reports over a period of three years. The first report of KKVD was placed
before the EAC /MoEF in the meeting held on October 2009. The available report of
KKVD on the basis of data collected thus far and analysed was considered by the subgroup. Thus, it cannot be said that the KKVD report was not taken into consideration
while recommending for grant of EC by the EAC.
Whether the likely impact due to Thermal Power Plant on the Ecosystem was not yet studied
and the same amounts to violation of Precautionary Principle?
Appellants
I.

Precautionary principle makes it mandatory for the Government to not only anticipate and
prevent but also attack the causes of environment degradation. Where there is an
indefinable risk of serious or irreversible harm, it may be appropriate to place the burden
of proof on the person or entity proposing the activity that is potentially harmful to the
environment and that lack of scientific certainty should not be used as a reason for
postponing measures to prevent such harm to the environment.1 The learned counsel of
Appellant alleged that the full impact and effects of the TPP on the Alphonso Mango
plantations and ecosystems of the area has not been fully studied and no study was
conducted on the mangos per se by the KKVD. The secondary studies relied on by EAC
were not done on mangoes by the KKVD. No study on flowering stage of mangoes was
done. The impact due to generation of Sulphur dioxide as well as the resultant acid rain
(blended with rain and dew) has not been taken into account. Sensitivity of mango to
Sulphur dioxide has not been considered. No study on carrying capacity of the area was
done. The EAC has wrongly concluded that there are no studies on impact of thermal power
plant and thermo dynamic efficiency of TPP was not discussed in the EIA or by EAC in
its report.

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

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Respondents
I.

The Respondents argued that the EAC has considered the precautionary principle. It is
further argued that the EAC as well as the MoEF have taken all the precautionary
measures in the conditions attached to the EC in respect of the effect of TPP on the
mango plantations and other significant environmental issues. The measures that the
MoEF has advised the Respondent No. 3 are as follows:
1. Flue Gas De-sulphurisation (FGD) system shall be installed before commissioning
the project and action in this regards shall be submitted within three months to the
Ministry.
2. Dense plantation of density not less than 2500 trees/shrubs per hectare (and survival
rate not less than 70%) including plantations of Alphonso mango shall be raised
within and outside the study area to act as buffer.
3. M/s JSWERL shall reduce the power generation and/or change to a fuel with low
Sulphur content or close the power plant, if so required in case the SO2 level exceed
the prescribed standards till the installation of FGD.
4. If at any point of time adverse impacts on mango orchards are noticed/established, the
plant shall be shut-down.

On the basis of the above, it can be said that the official Respondents have taken the precautionary
principles into consideration in the process of granting of EC. Further, it also cannot be said, that
the EAC and MoEF are prejudiced by the earlier grant of EC while reconsidering the EC. All other
allegations made by the Appellant have no bearing on the issues in question, therefore, they need
not be delved further.

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

It appears there are no Alphonso mango orchards elsewhere nearer to Thermal Power
Project where studies could be conducted and analysed. This is a peculiar situation and in
the light of that the KKVD was directed to conduct two phase study i.e. one year precommissioning stage and three years post commissioning stage. No doubt, apart from this,
some other study was also conducted which may not have much relevance for the purpose
of this case. Therefore, it cannot be said that the KKVD report was not taken into
consideration and therefore, the directions of the Hon'ble High Court of Delhi were not
adhered to and as such the EC requires to be interfered.

II.

After observing the arguments advanced it cannot be said that the official Respondents
have not taken the precautionary principles into consideration in the process of granting of
EC Further, it also cannot be said, that the EAC and MoEF are prejudiced by the earlier
grant of EC while reconsidering the EC. All other allegations made by the Appellant have
no bearing on the issues in question.

For all the above reasons, we are of the considered opinion that the appeal is devoid of any merit
and liable to be dismissed. However, we make it clear that the authorities concerned shall monitor
and take care of the Precautionary Principle and the post commissioning mitigative measures
attached to the EC and take appropriate action as and when necessary. The appeal is accordingly
dismissed. No order as to costs.

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CRITICAL ANALYSIS
The above judgement which was given by Principle Bench of NGT is conclusive, determinant and
based of solid legal reasoning. In the given judgement I completely agree with the Tribunal order.
As for first issue which talks about whether the KKVD report was properly considered by the
EAC, it was sufficiently proved that the Respondent No. 1 has adhered to the said report and has
formulated their opinion on the basis of same. The second issue which deals with Precautionary
Principle it was aptly showed that the Respondent No.1 has formulated measures that should be
strictly followed by Respondent No.3.
So, on both the issues the Respondent has negated the contention forwarded by the Appellant. On
the basis of this appeal was liable to be dismissed
According to my opinion the decision perceived by the tribunal is apt and it is the interest of justice.

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