Center for Social Justice [Janvikas] V. Union Of India. Spl. C. A, GJLR Vol. XLI (3) 2000, 1997

Center for Social Justice [Janvikas] V. Union Of India. Spl. C. A, GJLR Vol. XLI (3) 2000, 1997
J. M. Shah and J. R. R Tripathi, JJ.

This petition under Art. 226 of the Constitution, the Center for Social Justice [a public trust registered under the Bombay Public Trusts Act, 1950 which is engaged in various activities relating to social justice and human rights since 1994] has challenged the manner in which notification issued by the Government of India under the Environment [Protection] Act, 1986, in the matter of grant of environmental clearance are not being complied with in letter and spirit. The petition also challenges the environmental clearance given by the state government to the Gujarat Electricity Board, Dhuvaran, Thermal Power Project, Anand on the ground that public hear petition. It is submitted that although the statutory provisions provide for public hearing, the manner in which the respondent-authorities are purporting to implement g, but it ing proceeding were ab initio void. The petitioner also prays for certain directions to the respondent authorities about the manner in which the public hearing should be conducted and public hearing should be made effective and meaningful so as to achieve the object of the EP Act, 1986.

It is on account of the difficulties faced by the petitioner-trust at the time of participating at such public hearing in respect of 20 units that the petitioner-trust has been constrained to file this petition. It is submitted that although the statutory provision provide for public hearing, the manner in which the respondent -authorities are purporting to implement the provisions is such that the public hearing does not becomes merely a formality and the entire idea of inviting local people to participate at the hearing is frustrated.

The court thus made the following observation:

1. Venue of Public Hearings:

The District Collector is the Convenor of the Committee, and as a matter of practice, the Collectors are holding such public hearings at the district head-quarters. Considering the distance between the district head-quarters and the site at which the project is going to be put up and considering the fact that the persons who are likely to be most affected by the environmental degradation are people belonging to the lower economic strata of the society, it would not be unreasonable to expect that the G.P.C.B. and the concerned authorities will hold the public hearings at places near the project site or the affected village. Even if, there cannot be any hard and fast rule about the venue of such meetings but it appears to us that looking to the comparatively less distance between the taluka head-quarters and the villages where such projects are being put up, it would be more convenient for the local people if such public hearings are held at least at the taluka head-quarters. This will also take care of the argument on behalf of the G.P.C.B that the project may cover more than one villages.

As regards the period of notice, it is submitted that the period of public notice regarding public hearing should be at least three months.

2. Publication and Intimation:

As regards the newspapers in which the public notice for such public hearings are to be published, the Rules specifically provide that the publication has to be made in atleast two newspapers having wide circulation in the area. The purpose of publication is obvious that the people likely to be affected must be informed about the public hearing at which they can raise their objections or make their suggestions. This purpose would not be served if the notice is published in any obscure newspaper.

Another facet of wider publication is that there are many semi-literate or even literature persons who may not read newspapers, but they may get information about the proposed project, if the public notice is sent by the G.P.C.B. to the concerned Gram Panchayat also, as the members of the Gram Panchayat would bring it to the notice of the local people.

3. Access to Documents:

While the G.P.C.B. is ready and willing to supply copies of the executive summary to the Non-Governmental organisations approaching the G.P.C.B. such reports are not being made available by the local offices designated in the notification on the ground that the access means only perusal and not the copy of the report. It is obvious that looking to the nature of the executive summary and the nature of the public hearings, it would not be sufficient for the local residents only to read the executive summary, even if it is in Gujarat. Copy of such summary must be made available to the persons who ask for such summary for which there may be a nominal charge, if at all required, so as to enable the local residents and the association existing in the filed of environment to participate at the public hearings.

Learned Counsel for the petitioner submits that the executive summary is prepared by the unit and since the unit is otherwise also required to submit the environmental impact assessment report to the G.P.C.B., the summary of environmental impact assessment report must also form a part of the executive summary as that is going to be a part of the discussion at the public hearing.

4. Quorum at the Public Hearings:

It is obvious that if a large number of members of the Committee are absent, the public hearing may become illusory. In the instant case, the notification prescribing the procedure for public hearing requires, inter alia, appointment of an officer of the G.P.C.B., an officer from the department of Environment and Forest, and three senior citizens of the area nominated by the District Collector. If all these persons are absent, the Committee will only consist of Government/Panchayat officers and the very purpose of nominating the former categories of persons on the Committee would be frustrated.

To put it differently, at least the officer of the G.P.C.B., the officer from the Department of Environment and Forest and at least one senior citizen nominated by the Collector will have to remain present in order to prevent the public hearing from being rendered invalid.

5. Nomination of persons to the Panel:

Another aspect which is required to be considered is that while nominating three senior citizens on the Committee, the Collector shall also consider that at least one of the three senior citizens (not necessarily above the age of 65 years) should have some credentials on the issues of environmental concerns.

6. Minutes of the Public Hearing:

Learned Counsel for the G.P.C.B. has stated that if and when any person approaches for copies of such minutes, such copies are being supplied.

It is not possible to make any hard and fast rule but the Committee must keep in mind the spirit of the notification for public hearing and particularly to the object for which the public hearing and particularly the object for which the public hearing is to be held.

7. Environmental Clearance Certificate:

Regarding the environment clearance certificate, it is obvious that if the persons who have participated at the public hearing or other persons who are aggrieved by action of any other authorities of the Central Government are desirous of filing an appeal before the National Environmental Appellate Authority Act, 1997, they would not be in a position to file such appeal, if the authorities do not make them aware that a particular unit is granted the environmental clearance certificate.

It is true that it is not for the Court to examine the merits or demerits of a policy laid down by regulation-making body, but in the instant case, the petitioner is not challenging the wisdom of any policy or the measures enacted by the rule making authority for implementing that policy. The grievance of the petitioner is that in spite of the fact that the rule making authority has laid down the policy and has provided the measures for implementing that policy, on account of the wooden-headed and arbitrary approach on the part of the implementing authority, the purpose of the public hearing is not being achieved, and that, therefore, the petitioner is not challenging either the notification issued by the Central Government or the resolution passed by the State Government for implementing that notification.

This Court does not propose to ask the Central Government or the State Government to amend any notification, but when the Court finds that while exercising the power conferred on it, if the implementing agency does not pay heed to the object for which the power is conferred, the Court can give appropriate directions to the authorities to act in accordance with the notification as interpreted by the Court in light of the submissions made at the hearing of the petition.