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1 BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

(Application under Section 16 of the National Green Tribunal Act, 2010)

APPEAL NO: ......... OF 2017

IN THE MATTER OF

SOCIAL ACTION FOR ENVIRONMENT AND FOREST THROUGH ITS PRESIDENT R/O T-16, SENIOR CITIZEN HOUSING COMPLEX, SECTOR – P-3, GREATER NOIDA - 201 308 DISTRICT GAUTAM BUDH NAGAR, UTTAR PRADESH ……….APPELLANT

VERSUS

1. UNION OF INDIA MINISTRY OF ENVIRONMENT, FORESTS & CLIMATE CHANGE THROUGH ITS SECRETARY INDIRA PARYAVARAN BHAWAN, JOR BAG ROAD, NEW DELHI- 110003

2. UTTAR PRADESH POLLUTION CONTROL BOARD THROUGH ITS MEMBER SECRETARY BUILDING.NO. TC-12V VIBHUTI KHAND, GOMTI NAGAR LUCKNOW-226 010

3. M/S THDC INDIA LIMITED THROUGH ITS MANAGER

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2 PLOT NO. 20, SECTOR-14, KAUSHAMBI, GHAZIABAD – 201010 UTTAR PRADESH

I.

………RESPONDENTS

The addresses of the Appellant are given above for the service of notices of this Appeal.

II.

The addresses of the Respondents are given above for the service of notices of this Appeal.

MOST RESPECTFULLY SHOWETH: 1.

That the present Appeal is being filed against the Environmental Clearance granted by the Ministry of Environment, Forest and Climate Change on 303-2017 for the setting up of the Coal Fired Power plant by THDC in Khurja, Uttar Pradesh. The copy of the clearance letter DATED 30.03.2017 is hereto annexed and marked as Annexure A.

2.

That the Appellant is an environmental organisation which is working on environmental issues with specific focus on the National Capital Region for the last few years. Specifically, the Appellant organisation as well as its members

have

approached

this

Hon'ble

Tribunal

raising

various

environmental issues such as stubble burning, water pollution, sand mining among others.

3.

That the Appellant is filing this present Appeal in view of the fact that the coal fired power plant has been approved without any consideration of the environmental and social implication of locating such a polluting activity in an area which is already highly polluted and water stressed. The project violates the Precautionary Principle as well as is based on submission of wrong and misleading information and data. The Expert Appraisal

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3 Committee and the Ministry of Environment, Forest and Climate Change failed to undertake detailed scrutiny which is mandatory under the provisions of the Environment Impact Assessment Notification, 2006. The Project once operational will aggravate the air pollution crisis which is being faced in the Indo Gangetic Plains in general and the National Capital Region specifically.

FACTS 4.

That the Project was considered for scoping under the provisions of EIA Notification 2006 during the 32nd Meeting of the Expert Appraisal Committee of the Ministry of Environment, Forest and Climate Change on 12th and 13th September, 2011.

5.

That the Terms of Reference for the EIA Report was communicated to the project proponent on 27-10-2011.

6.

That the validity of the Terms of Reference was extended to 26-10-2014 vide Ministry‟s letters dated 03-12-2013 and 15.01.2015.

7.

That the Draft EIA Report was submitted on 30-03-2013 and the Public Hearing was conducted on 01-08-2015 i.e more than 2 years after the submission of the Draft EIA Report. It is pertinent to point out that as per the provision of the EIA Notification, 2006, the date, time and venue of the Public hearing should be finalised within a period of 7 days from the receipt of the Draft EIA Report. The relevant Para (Appendix IV of the EIA Notification) which deals with procedure for conduct of public hearing states as follows (Page 37 and page 38):

“The Member-Secretary of the concerned SPCB or UTPCC shall finalize the date, time and exact venue for the conduct of public hearing within 7(seven) days of the date of receipt of the draft Environmental Impact

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4 Assessment report from the project proponent, and

advertise the same in

one major National Daily and one Regional vernacular Daily. A minimum notice period of 30(thirty) days shall be provided to the public for furnishing their responses.” 8.

That in violation of the EIA Notification, 2006, the Pollution Control Board issued Notice for public hearing about a year after the submission of the EIA Report. This is contrary to the provisions of the EIA Notification, 2006.

9.

That the Public Hearing was held on 01-08-2015. The perusal of the Minutes of the Public hearing show that that the entire proceedings of the Public Hearing is contrary to the provisions as well as the letter and spirit of the EIA Notification, 2006. The following are the major illegalities/ irregularities so far as the public hearing is conducted.

a.

The Public Hearing Panel comprised of the Additional District Magistrate, the Deputy Collector and five officers of the UP Pollution Control Board. In addition, the Tehsildar as well as Additional General Manager, STTP and the EIA Consultant Mantec were also listed as in the Panel. The EIA Notification, 2006 only provides for District Collector or his nominee not below the rank of Additional District Magistrate and representative of the Pollution Control Board. There is no provision for such large number of officials to be present in the Public Hearing.

b.

That the minutes reveal that the Applicant i.e the THDC did not make any presentation on the EIA Report and specially the Summary EIA Report. The EIA Notification specifically requires the Project Proponent to make a presentation on the summary EIA report which includes the anticipated environmental impacts. It is important that the 'pros and cons' and especially the environmental consequences which are likely

5 to arise as a result of setting up of the project is explained to the public. The Minutes does not reveal that any such exercise was done. This aspect is of great concern given the fact that the area already is water stressed; the project would involve diversion of water from the irrigation canal and the will increase the air pollution levels. These impacts ought to have been shared with the public in order to elicit their responses.

c.

In the minutes of the Public Hearing, it is stated that the Environmental Impact Assessment Report in relation to the thermal power project was prepared in compliance with all the instructions issued by the Environment Directorate for the project and almost 10 samples for water, air, noise, soil, vegetation and other have been tested and samples were collected in 10 Kilometres radius of the project during October -November of 2014. It submitted that EIA EMP studies were submitted to UPSPCB on 30-3-2013 and as per the study the baseline data were collected in October-December, 2012. Therefore, to refer to samples which are not part of the EIA Report is a case of gross illegality and irregularity.

d.

The EIA Consultant did not deal with any of the environmental consequences of the project. Rather, stated that measures for pollution control will be adopted as per environmental clearance accorded by the Ministry of Environment and Forest. Thus, the EIA Consultant assumed that the Environmental Clearance will be granted.

e.

Rather than the public raising questions, the officials of the State Pollution Control Board raised questions with respect to the project. The entire proceedings seems to have been monopolised by officers of the State Pollution Control Board.

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6 f.

There was no focus on any of the critical environmental issues associated with the commissioning of the power plant.

10. That the Project was considered for Appraisal during the 1st meeting of the Reconstituted Expert Appraisals Committee held on 28-12-2016. The EAC noted the following among others:

I.

The

EIA

prepared

by

Mantec

Consultants

(P)

Ltd,

is

not

comprehensive. Project Proponent could not provide the quantity of fly ash generated and concrete disposal plan. All the maps and layouts provided in the EIA are not legible. II.

A natural drain (Aligarh Nallah) is passing through the project site. Justification for diverting this nallah has not been provided. Hydrology report prepared by NIH, Roorkee and their recommendations have not been provided.

III.

It is observed that EIA which was submitted to the Ministry post public hearing and the EIA which has been circulated to EAC Members for meeting has some difference in baseline data. Baseline data for March-May, 2016 has also been collected in addition to OctoberDecember, 2012 and incorporated the same in the EIA. However, the same has not been clarified in the report, why additional baseline data has been provided.

IV.

In the EIA, baseline data for NOx and SO2 results have been shown in the Ozone values. The whole EIA report has been prepared in qualitative manner.

V.

Details of Quantitative Risk Assessment and credible failure scenarios for Hazardous Chemical containers such as Fuel Oil, Transformer Oil, Chlorine, etc have not been provided in the EIA.

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7 VI.

Native and indigenous species have not been proposed in the EIA which shall be part of green belt development plan. The EAC therefore deferred the project.

11. That the next meeting of the EAC took place on 14th of February, 2017. The minutes mention about the submissions made by the Project Proponent on some of the issues raised in the previous EAC. However, there is no mention of any Comprehensive EIA. In fact, it is not possible to do a comprehensive EIA in less in two months. As per the Ministry of Environment and Forest, the difference between Rapid and Comprehensive is as follows: "The difference between Comprehensive EIA and Rapid EIA is in the time-scale of the data supplied. Rapid EIA is for speedier appraisal process. While both types of EIA require inclusion/ coverage of all significant environmental impacts and their mitigation, Rapid EIA achieves this through the collection of „one season‟ (other than monsoon) data only to reduce the time required. This is acceptable if it does not compromise on the quality of decision-making. The review of Rapid EIA submissions will show whether a comprehensive EIA is warranted or not.” In addition, there is no discussion or mention as to why the baseline data has differed in the EIA Report submitted before the EAC and the MoEF. Further, assuming that the data was of October -December, 2012 and later of March-May, 2016 which was considered by the EAC, it is surprising that the EAC accepted both the figures without questioning the authenticity of the same. Given the accepted fact that the ambient air quality levels in summer is lesser than the ambient air quality levels of winter. However, the Project proponent is stating higher values in the summer for PM 10 and PM 2.5 and SPM raises serious doubt as to the correctness of the data. Thus, the figure for PM 10 in March to May, 2016 is shown with a maximum value

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8 of 92 and the corresponding value for October-December 2012 is 84 (Page 22 of the EIA Report). In addition, the very figure of 92 or 84 for PM 10 and 48 Micro Gms Per Metre Cube for PM 2.5 in summer and 42 for winter is highly improbable. It is surprising, to state the least that none of the Expert Members of the Expert Appraisal Committee raised any question or had any doubts on such improbable figures. As per the EIA Notification, 2006, appraisal refers to the 'detailed scrutiny' by the EAC of the EIA report and other document. A detailed scrutiny would have clearly revealed the misleading figures. Clearly, the EAC in haste did not consider this vital issue though this is the principle function of the expert committee. The only statement with respect to baseline data is as follows:

“Baseline data in the EIA has been corrected and revised. All maps in the EIA have been submitted in the legible form.” Merely stating that baseline data in the EIA has been corrected and revised clearly reveals non application of mind. With respect to Public hearing the following is mentioned:

“Public Hearing proceedings in English prepared by Uttar Pradesh Pollution Control Board have also been submitted.” Not a word is written as to what the views of the EAC members are on the Public Hearing. There is nothing on record to show that the EAC members actually went through the minutes or even the Video Record of the Public Hearing. Thus, the EAC failed in taking this crucial task of environmental appraisal with the seriousness it deserves.

12. That the proposed Khurja STPP is situated less than 100KM from the Dadri Thermal Power Station. The Data obtained from UPPCB for PM 10 two monitoring station in Khurja during the study period that the project proponent has done the study (March – May 2016) revels that the average

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9 value is 170 microgram/cubic meter for the two stations CGCRI and Ahipara. This is 184% higher than the value given in the EIA. It should be noted that these stations are within 10KM distance from the proposed Khurja STPP. This raises two important questions 1. Authenticity of the EIA and 2. Despite a CPCB member sitting in the committee they failed to cross examine the data in the EIA with the data that UPPCB has collected. This clearly shows the non application of mind by the EAC and the project was cleared in haste. RTI data from UPPCB is given below : Table: Data from UPPCB for two stations PM10 Month

CGCRI Ahirpara Average

Mar-16

181

162

Apr-16

181

162 170.3833

May-16

177.8

158.5

13. That in the report “A Comprehensive Study on Air Pollution and Green House Gases (GHGs) in Delhi (Final Report: Air Pollution component) Submitted to Department of Environment Government of National Capital Territory of Delhi and Delhi Pollution Control Committee, Delhi” by Mukesh Sharma; PhD and Onkar Dikshit; PhD Professors, Department of Civil Engineering Indian Institute of Technology Kanpur, Kanpur- 208016.” (IIT Kanpur Report) [ page 276, 277]

“6.2.9 Secondary Particles: Control of SO2 and NO2 from Large point sources What are the sources of secondary particles, the major and consistent contributors to Delhi‟s PM? These particles source from precursor

gases

(SO2

and

NOx),

which

are

chemically

transformed into particles in the atmosphere. Mostly, the precursor gases are emitted from far distances from large sources. For sulphates, the major contribution can be attributed to large

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10 power plants and refineries. The prevalent wind from north-west and south-east can bring in the secondary sulphates and nitrates from large power plants and refineries almost from all sides in Delhi. However, contribution of NO2 from local sources, especially vehicles and power

plants

can

also

contribute

to

nitrates.

Behera and

Sharma (2010) for Kanpur have concluded that secondary inorganic aerosol accounted for significant mass of PM2.5 (about 34%) and any particulate control strategy should also include control of primary precursor gases. In Delhi, estimated contribution of secondary particles in PM 2.5 is 30% and requires strict controls. What is even more significant, controlling secondary particles through control of SO2 and NOx will benefit the entire NCR and just not Delhi. There are 13 thermal power plants (TPPs) (Figure 6.3) with a total capacity of over 11000 MW within the radius of 300 km from

Delhi, which are expected to contribute to secondary

particles. Based on the study done by Quazi (2013), it was shown that power plants contribute nearly 80% of sulphates and 50%

nitrates

to

the

receptor

concentration. A calculation

assuming 90% reduction in SO2 from these plants can reduce 72% of sulphates. This will effectively reduce PM10 and PM 2.5 concentration by about 62 µg/m3 and 35 µg/m3 respectively. Similarly 90% reduction in NOx can reduce the nitrates by 45%.

This will effectively reduce

PM10 and PM2.5 concentration by about 37 µg/m3 and 23 µg/m3 respectively. It implies that control of SO2 and NOx from power plant can reduce PM10 concentration approximately by 99 µg/m3 and for PM 2.5 the reduction could be about 57µg/m3.“ It should be noted that Khurja is within 100Km from Delhi and as stated above it shares a common air shed with Delhi. Given the crisis that Delhi

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11 and north India is facing with respect to air pollution. It is imperative that the EAC should have considered the air pollution levels in the region and the impact of adding more pollution to the existing highly polluted region. 14. That Section 3(4) of Electricity Act, 2003 stipulates that, the Central Electricity Authority (CEA) shall prepare a National Electricity Plan in accordance with the National Electricity Policy and notify such plan once in five years. Accordingly, CEA prepared the National Electricity Plan 2015 that included a short-term framework of five years while giving a 15-year perspective that would include:  Short-term and long term demand forecast for different regions;  Suggested areas / locations for capacity additions in generation and transmission keeping in view the economics of generation and transmission, losses in the system, load centre requirements, grid stability, security of supply, quality of power including voltage profile etc. and environmental considerations including rehabilitation and resettlement;  Integration of such possible locations with transmission system and development of national grid including type of transmission systems and requirement of redundancies; and The report was put on public domain for comments in December 2016. Key highlights of the report are the following th

1. In the 12 Plan, likely capacity addition from conventional sources as per review carried out as on 31.03.2016, will be 101,645 MW (Coal86,250 MW, Lignite–1,290 MW, Gas–6,080 MW, Hydro–5,525 MW, Nuclear 2,500MW) against a target of 88,537 MW. This is about 115% of the target.

2. The projected Peak Demand is 235 GW and Energy requirement is

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12 1,611 BU (after considering DSM measures) at the end of year 202122 which is around 17% and 15.4% lower than the corresponding th

projections made by 18 Electric Power Survey (EPS) report.

3. The projected Peak Demand is 317 GW and Energy requirement is 2132 BU at the end of year 2026-27 which is around 20.7% and 21.3% lower than the corresponding projections made by 18

th

EPS

report.

4. Considering capacity addition from Gas–4,340 MW, Hydro 15,330 MW, Nuclear -2800 MW and RES–1,15,326 MW as committed capacity during 2017-22, the study reveals that no coal based capacity addition is required during the years 2017-22. However, a total capacity of 50,025 MW coal based power projects is currently under different stages of construction and are likely to yield benefits during the period 2017-22. Thereby, the total capacity addition during 2017-22 is likely to be 1,87,821 MW.

5. The study result for the period 2017-22 indicated that no coal based capacity addition is required. Considering this as input for the studies for the period 2022-27 and committed capacity addition of Nuclear -4,800 MW, Hydro-12,000 MW and RES 100,000 MW during 2022-27 and demand projections for the year 2026-27, study for the period 2022-27 reveals that a coal based capacity addition of 44,085 MW is required. However, as coal based capacity of 50,025 MW is already under construction which is likely to yield benefits during 2017-22, this coal based capacity would fulfill the capacity requirement for the years 2022-27. It‟s clear from the above that India does not need any new coal plants till 2027 hence any additional power plants would only create bad assets

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13 for the country and sink in public money. Despite the fact a member from CEA being in the committee these crucial points have been missed by the committee

15. That according to the report “Great Water Grab” by Greenpeace areas in and around Delhi and surrounding areas suffer from high water stress. Water stress is defined by

the ratio of total water withdrawal for all

human uses (m3/year) to the available blue water (m3/year), used by the World Resource Institute (WRI) in the Aqueduct tool (Gassert, 2014). Water stress is defined in categories ranging from low (<10 %), low and medium (10-20 %), to medium and high (20-40 %), high (40-80%), and extremely high (80-100 %). In the case of Bulandshahr district the surface water stress is in High stress region. Having a power plant in the district would further deprive water for other essential uses such as agriculture and drinking.

16. That this is further established by the DISTRICT GROUND WATER BROCHURE BULANDSHAHAR DISTRICT UTTAR PRADESH (A.A.P.: 201213) Prepared By: S.G.Bhartariya Scientist-„C‟. Central Ground Water Board Northern Region Lucknow. The report has the following observation on ground water: “Ground Water Related Issues and Problems: The trend analysis of historical ground water level data indicate fall both in Pre and Postmonsoon period in the major parts of the district. This will impact in:- (i) further decline of ground water level (ii) drying up of dug wells/shallow wells (iii) decrease in yield of shallow wells, and (iv) increased expenditure and power consumption for drawing water from progressively deeper depths. Pollution of ground water due to industrial effluents is a major problem in the district. Excessive use of fertilizers and pesticides in

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14 agriculture, improper waste disposal have resulted in high content of nitrate in the phreatic zone in the district.” According to the report the Nitrate (33% of water samples collected from unconfined shallow aquifers in 2011 have high concentration of No3 (>45 mg/l) The report also recommends, “As level of development in many blocks of the district is high, further development of ground water in these areas, especially in Gulaothi and Khurja blocks which fall in Critical category, should be done with extreme caution.” The EIA prepared by the project proponent has failed in many counts in dealing with the water issue. The EIA mentions the following on the impact of water: “Make-up water requirement during operational phase, approx. 3265 m3/hr (equivalent to 2.47m3/KWH), will be met from Upper Ganga Canal. Withdrawal of water from the canal would affect the downstream users. To meet the additional requirement of water, it is proposed to provide lining to the canal so as to minimize losses due to seepage/infiltration.” a. The EIA does not even discuss the impacts on the local water resources due to the water consumption of the power plant on the downstream communities. There is no estimate on how many farms, communities will be affected. b. Lining of the canal would result in less seepage of water into the ground and would further impact the ground depleting ground water in the region. c.

The executive summary of the EIA does not talk about the impact of local water resources this clearly shows that community were never

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15 informed by the project proponent on the impacts of water withdrawal. d. It is also unclear how the project proponent found all parameters in water within limits when the report the Nitrate (33% of water samples collected from unconfined shallow aquifers in 2011 have high concentration of No3 (>45 mg/l). 17. That the EIA fails to demonstrate that fly ash produced by the Khurja TPP will be utilized in compliance with the ToR condition xvii and the latest fly ash Utilization Notification. The EIA does not contain the required firm agreements or MoUs with contracting parties demonstrating that sufficient quantities of fly ash will be utilized. Specifically:

a. The EIA states that the Khurja Plant will produce approximately 7400 tons of fly ash per day. b. The EIA contains a “Market Survey for Ash Utilization,” which was completed in 2012 and is therefore wholly irrelevant because it is outdated and does not contain any firm commitments for ash use. c. The EIA claims that any shortfall in ash reuse will be made up during the following two years, in addition to reuse of all newly-produced ash during that period. “The unutilized fly ash in relation to the target during a year, if any, shall be utilized within next two years in addition to the targets stipulated for those years and the balance unutilized ash accumulated during first four years shall have to be utilized progressively over next 5 years in addition to 100%utilization of current generation of ash.” This component of the reuse „plan‟ is illusionary, even discounting the fact that there is not nearly enough dry ash storage being planned to contain

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16 unknown hundreds of thousands of additional tons of ash for future reuse. Once disposed in the ash basins and mixed with water, such ash will ever be removed for reuse. 18. That the EIA acknowledges that that a water body/nallah passing across the site will be disturbed. Specifically the EIA states that the Aligarh drain will be relocated more than a kilometer to the east of its present location. Despite the elimination of a portion of the drain and the substantial modification of the land surface, the EIA fails to ensure that the diversion will not disturb the natural drainage of the area. Further the EIA fails to provide details of the diversion. Consequently the proponent has violated ToR condition xix.

19. That the EIA fails to include a credible water balance diagram for the plant. 20. That the Hydrogeological Study has still not been provided. This absence occurs despite predictable adverse impacts to groundwater from coal ash disposal and construction of a 100-acre raw water reservoir.

21. That the EIA fails to demonstrate the feasibility of a zero liquid discharge system at the plant. While the EIA states that there will be no water discharged from the fly ash pit, the claim is contradicted by the assertion that the plant will also be operated with a “once through” water budget. The EIA contains no narrative description of the zero liquid discharge system, and the water balance diagram, which is not included in the EIA, contains numerous errors and gaps in information. Lastly, the EIA describes effluent discharges from the plant, which indicate that Khurja, in fact, will not operate a zero liquid discharge system.

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17 22. That the EIA does not contain a detailed water quality monitoring plan, as required by ToR condition xxviii. The EIA does not identify the direction of groundwater flow, specify monitoring parameters, identify monitoring points or identify potential receptors. 23. That the EIA fails to examine and report the radioactivity and heavy metal contents of the coal to be sourced, in violation of ToR xL. 24. That the EIA claims that no contamination of groundwater will occur from the fly ash and bottom ash basin, but the proponent failed to provide any engineering specifications for the basin or liners. The proponent also failed to describe the proposed HCSD system or to provide support for its statement that the possibility of leaching of metals is “very low.” Without such information, it is impossible for the EAC to evaluate the effectiveness and structural integrity of the proposed ash disposal system. 25. That the EIA does not provide any evaluation of impacts to agricultural land or explain what measures will be taken to protect such land. According to the EIA, agricultural land is the major constituent of the study area, accounting for 82.56 percent of the total area. In fact, the EIA admits that 97.04 percent of the land identified for the siting of the plant is currently in agricultural use. 26. That the EIA does not describe how storm water will be managed. This is a significant omission in light of the large amount of water to be disposed in the ash basin daily (1.26 MGD) and the huge additional contribution of water to the basins during the monsoon season. Lastly, the proximity of agricultural land makes the effective control of runoff imperative to protect the soil of adjacent lands as well as the integrity of irrigation canals.

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18 27. That the EIA indicates that fly ash will be transported in open tankers or trucks but there is no analysis of the potential for increased particulate pollution from such activities. 28. That the EIA provides no information concerning the disposal of the Flue Gas Desulphurization sludge (FGD sludge or gypsum) from the FGD System. The EIA states that the sludge will be “recovered and disposed through sale.” However, there is no evidence that there is demand for utilization of FGD sludge in the vicinity of the plant. The proponent provided no contracts or MOUs to demonstrate even the intent of industries

to

purchase

or

remove

the

sludge

for

commercial

manufacturing. Significantly, the EIA‟s water balance diagram indicates the potential for “intermittent” disposal of FGD-related water in the fly ash disposal basin yet that 1.27 MGD of contaminated water is not included in the already massive quantity of water (9.26 MGD) being disposed to the ash basin. 29. The EIA states that fly ash will be used as fill for development of low-lying areas. Use of fly ash in low-lying areas, however, is prohibited.

GROUNDS The Environmental Clearance granted is liable to be revoked on the following grounds: A.

Because, the Environmental Clearance is in violation of the Precautionary Principle and Principles of sustainable development. The EIA Report has not dealt with any of the factors which ought to have been considered at the time of grant of approval by the Ministry of Environment, Forest and Climate Change.

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19 B.

That the entire approval was granted in haste. In Zenit Mataplast P. Ltd. vs. State of Maharashtra and Ors. (2009) 10 SCC 388

“33. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law. (Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Ors. MANU/SC/0578/1995MANU/SC/0578/1995: (1995) 1 SCC 638; and Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia and Ors. AIR 2004 SC 1159). 34. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No. 4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution.” C.

In State of Tamil Nadu & Ors. v. K Shyam Sunder & Ors. (2011) 8 SCC 737 “......proceeding in haste itself cannot be a ground of challenge to the validity of a Statute though proceeding in haste amounts to arbitrariness and in such a fact- situation the administrative order becomes liable to be quashed.” The Expert Appraisal Committee dealt with the approval in the most

mechanical casual and lackadaisical manner. There is no

document on record to show that there was application of mind given the sensitive habitat and large impact of the decision. The

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20 duty of an authority to apply its mind before arriving at a decision is a well enshrined principle of law. A mechanical or lackadaisical approach by authorities in examining applications has been criticized by this Hon‟ble Court in the case of Municipal Corporation of Delhi, Delhi Vs. Association of Victims of Uphaar Tragedy and Ors reported in (2013)1SCC(LS)305, in the following words:

“We make it clear that the exoneration is only in regard to monetary liability to the victims. We do not disagree with the observations of the High Court that the performance of duties by the licensing authority and by MCD (in its limited sphere) was mechanical, casual and lackadaisical. There is a tendency on the part of these authorities to deal with the files coming before them as requiring mere paper work to dispose it. They fail to recognize the object of the law or rules, the reason why they are required to do certain acts and the consequences of non-application of mind or mechanical disposal of the application/requests which come to them” D.

Because, the EAC and MOEF failed to take into consideration the fact that the EIA Report was based on submission of false and misleading data, specially with respect to air quality. It is a relevant fact that ought to have been considered in depth by the EAC and MOEF. No Submission of false and misleading data is a ground for revocation of approval under the EIA Notification, 2006.

E.

Because, the decision to grant approval is arbitrary and reflects non application of mind to relevant consideration. Non consideration of factors which ought to be considered is a ground for quashing a decision. The impact of the project on the air quality, the water

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21 sources and the livelihoods and access to water of the local community was never considered by the EAC or the MoEF. F.

Because, the EAC failed to take into account the fact that as per the assessment of the Central Electricity Authority, there was no need for any additional power plant till 2027. The EAC despite having a representative from CEA failed to deliberate on this issue.

G.

Because, the EIA Report is not in accordance with the Terms of Reference granted by the MoEF. As per the EIA Notification, 2006, the EIA Report must be strictly in accordance with the Terms of Reference.

LIMITATION

The instant appeal is being filed within 90 days, the delay caused from the 30th day is due to bonafide reasons. A separate application is being filed for the condonation of the same. PRAYER

In view of the above facts and circumstances, it is humbly prayed that the Hon‟ble Tribunal may be pleased to: i)

Quash the environmental Clearance dated 30.03.2017

ii)

Direct that a moratorium be imposed on consideration of new proposals for thermal power plants within 300 KM of Delhi till there is a decline in the levels of pollution.

iii)

Direct that any new proposal for thermal power plant shall be considered only after four season monitoring of environmental parameters.