TAPAS GUHA & ORS.versusUNION OF INDIA & ORS.

                   [2024] 6 S.C.R. 75 : 2024 INSC 399

                             Tapas Guha & Ors.
                                      v.
                            Union of India & Ors.
                   (Civil Appeal Nos. 4603-4604 of 2024)
                                   06 May 2024
  [Dr Dhananjaya Y Chandrachud,* CJI, J B Pardiwala and
                    Manoj Misra, JJ.]

                            Issue for Consideration
       The Appellants in an Original Application before the National Green
       Tribunal (NGT) contended that there was widespread cutting of shade
       trees, uprooting of tea bushes and eviction of tea estate workers in the
       Doloo Tea Estate, the site identified for the Greenfield Airport Project
       in Assam, without obtaining environmental clearance. It was also
       contended that this was in violation of the provisions of Environmental
       Impact Assessment Notification, 2006, which necessitates prior
       Environmental Clearance and public consultation for Category-A
       projects in its Schedule. Whether the order of the National Green
       Tribunal (NGT) dismissing the Original Application holding that mere
       inclusion of a clause under the head ‘Environment Clearances’ in the
       form of said Notification does not deem the same to be mandatory
       for purposes of the EIA assessment study is legally sustainable?

                                    Headnotes
       Evidentiary value of the statements recorded on oath of
       witnesses for preparing the Report of the Secretary of the
       District Legal Services Authority (DLSA) – Statements show
       use of 200 to 250 JCBs ‘day and night’ for three days in May
       2022 and prohibition in movement of inhabitants during that
       time – Report recorded that 89 shade trees found to be cut on
       inspection and a statement of the Circle Officer that 41,95,909
       tea bushes have been uprooted – Considered:
       Held: The Court should keep in mind that the statements of the
       witnesses, though recorded on an oath, have not been tested on
       the anvil of cross-examination – Yet the statement of the Circle
       Officer that 41,95,909 tea bushes have been uprooted, prima facie
       corroborates it, at this stage. [Paras 10-12]
       The Affidavit of State Government placed reliance on the
       communication of the Member Secretary of the SEAC in Assam
* Author
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      – That this was a case of routine uprooting of tea bushes
      and shade trees to improve production of tea – Disbelieved:
      Held: The argument of the Solicitor General that the possession
      of the site was handed over only in June 2022 and hence the
      destruction of the vegetation in May 2022 was not by the State
      authorities but likely by the inhabitants is inconceivable – On 11
      May 2022, orders were issued by the District Magistrate under
      Section 144 CrPC – This was a prelude to the organized activities
      which took place in the month of May 2022, as recorded in the
      statements appended to the report of the DLSA – An organized
      operation involving over 200-250 JCBs at the behest of the tea
      garden workers is implausible – The clearance was evidently not
      a part of the regular maintenance of the tea estate but to facilitate
      the proposed new airport. [Paras 13-14]
      National Green Tribunal (NGT) – Creation of – Purpose – Listed
      out:
      Held: The NGT is an expert body established by a Central Statute
      viz., The National Green Tribunal Act, 2010, to safeguard the
      environment, ensure sustainable development and facilitate the
      effective and expeditious disposal of cases related to the protection
      and conservation of the environment, forests, and other natural
      resources. [Paras 16-17]
      National Green Tribunal (NGT) – Perfunctory dismissal of case
      – Criticized:
      Held: The Tribunal ought to have verified the authenticity of the
      grievance – Callous approach towards adjudication undermines
      the integrity of the judicial process and also compromises the very
      purpose for which the NGT was established – Such callousness
      also reflects a lack of due diligence and disregard for the gravity
      of the environmental concerns raised by the appellants setting a
      concerning precedent which erodes public trust in the efficacy of
      environmental governance mechanisms. [Paras 16-17]
      Environment – Environmental Impact Assessment Notification,
      2006 – Para 2 of the Notification – Examined in the light of
      the facts:
      Held: Paragraph 2 of the Notification makes it clear that before
      any construction or preparation of land by the project management
      except for securing the land, shall require prior environmental
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               Tapas Guha & Ors. v. Union of India & Ors.


     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 – Construction of airports is item 7(a)
     of the A Schedule to the Notification dated 14 September 2006 –
     Extensive activities were carried out at the site without obtaining
     environmental clearance and is in breach of paragraph 2 of the
     notification. [Paras 7 and 15]
     The need for Environmental Regulations and Environmental
     Clearance – Explained:
     Held: Environmental regulations are in place precisely to ensure
     that developmental projects, such as the establishment of airports,
     are undertaken in a manner that minimizes adverse ecological
     impacts and safeguards the well-being of both the environment
     and local communities – The infrastructure development must
     proceed in harmony with environmental laws to prevent irreparable
     damage to ecosystems and biodiversity – The requirement for
     Environmental Clearance prevents unchecked exploitation of
     natural resources and helps uphold the principles of sustainable
     development – The decision on whether an airport is situated
     at a particular place is a matter of policy, but when the law
     prescribes specific norms for carrying out activities requiring
     an Environmental Clearance, it has to be strictly complied with.
     [Paras 20-21]

                                List of Acts
     National Green tribunal Act, 2010; EIA Notification S.O. 1533(E)
     Dated 14.09.2006.

                             List of Keywords
     Environmental clearance; Felling trees; Tea estate; Greenfield
     airport.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4603-4604
     of 2024
     From the Judgment and Order dated 25.01.2024 of the National
     Green Tribunal, Eastern Zone in Original Application No. 15 of 2024
     and I.A. No. 8/2024/EZ
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                          Appearances for Parties
       Prashant Bhushan, Ms. Ria Yadav, Advs. for the Appellants.
       Tushar Mehta, Solicitor General, Nalin Kohli, Sr. A.A.G., Devajit
       Saikia, Advocate General, Gopal Sankaranarayanan, Sr. Adv.,
       Raghav Shankar, Karan Lahiri, Abhikalp Pratap Singh, Ms. Aagam
       Kaur, Ms. Yamini Singh, Kartikey, Ravi Shankar Pandey, Aditya Dixit,
       Shuvodeep Roy, Saurabh Tripathi, Sumit Kumar, Ms. Rukmini Barua,
       Ms. Padmini Barua, Debadutta Kanungo, Ms. Alice Raj, Rahul Gupta,
       Advs. for the Respondents.
                  Judgment / Order of the Supreme Court
                                  Judgment
       Dr Dhananjaya Y Chandrachud, CJI
1.     Application for intervention is allowed.
2.     These Appeals arise from an order dated 25 January 2024 of the
       Eastern Zone Bench of the National Green Tribunal.
3.     The Ministry of Civil Aviation of the Union Government decided to
       build a commercial Airport at Silchar in Assam since the existing
       defence airport is not suitable for domestic civilian operations.
4.     Three tea estates, namely, (i) Doloo; (ii) Khoreel; and (iii) Silcoorie
       were identified by the Government of Assam for the sites of the
       airport. The Airport Authority of India1 conducted a feasibility study
       and chose Doloo as the site for a new Greenfield Airport on land
       admeasuring approximately 335 hectares. AAI made a request for
       additional land, following which an adjacent area in the same tea
       estate admeasuring 69 hectares was identified. About 173 dwelling
       units are situated on the additional area of 69 hectares. The total
       land area thus admeasures 404 hectares.
5.     The appellants moved the National Green Tribunal with the
       grievance that though in terms of the Notification dated 14
       September 2006 of the Ministry of Environment and Forests, an
       Environmental Clearance is required for the construction of an
       airport, the site has been cleared of shade trees and tea bushes



1     “AAI”
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                Tapas Guha & Ors. v. Union of India & Ors.


     despite the absence of such a clearance. The Appellant raised
     concerns regarding:
     (i)    extensive eviction leading to 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 with massive uprooting
            and felling;
     (iii) imposition of Section 144 CrPC during eviction, utilizing 1050
           bulldozers and excavators to clear 2500 bighas for the airport;
     (iv) the airport project being Category-A, with site clearance already
          underway without prior Environmental Clearance, violating EIA
          Notification, 2006. Additionally, the proposed Airport falls under
          Category ‘A’, necessitating scoping, public consultation as
          per EIA Notification, 2006; however, post-eviction, no “public”
          remains for consultation in affected areas.
6.   The National Green Tribunal2, by its order dated 25 January 2024,
     dismissed the OA. The NGT held that an Environmental Impact
     Assessment Report was awaited and the Environmental Clearance
     for the airport has not been granted. Yet it held that the plea of the
     appellants for an order of restraint on the grant of site clearances
     and in principle approvals was without merit at that stage. The NGT
     also observed that the mere inclusion of a clause under the head
     ‘Environment Clearances’ in the form of said Notification does not deem
     the same to be mandatory for purposes of the EIA assessment study.
7.   The Appeals were taken up by this Court on 22 April 2024. The
     Petitioners have been represented by Mr Prashant Bhushan. Mr
     Tushar Mehta, Solicitor General appears for the respondents.
     Mr Gopal Sankaranarayan, senior counsel has appeared for the
     intervenors. It is an admitted position that an Environmental Clearance
     is required for the project of setting up the airport and no such
     clearance has been issued. Paragraph 2 of the Notification dated
     14 September 2006 is in the following terms:
            "2. Requirements of prior Environmental Clearance
                (EC): The following projects or activities shall require


2    NGT
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                  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.”
      The construction of airports in item 7(a) of the Schedule.
8.    By the order of this Court dated 22 April 2024, the Secretary of the
      District Legal Services Authority, Cachar was directed to visit the
      site and submit a report to this Court on:
      (i)    Whether any felling of shade trees had taken place;
      (ii)   Whether any eviction at the site had taken place; and
      (iii) The nature of the activities which have been carried out at the
            site.
9.    At this stage, it would be material to note that contrary to the
      assertions of the appellants, on 22 April 2024, an affidavit was filed
      by the Joint Secretary to the Government of Assam in the General
      Administration Department stating that:
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     (i)    there has been no felling of shade trees at the site in question;
     (ii)   no eviction of individuals or households had taken place from the
            land under consideration since the tract was not inhabited; and
     (iii) removal of tea bushes “occurs routinely even as part of regular
           tea cultivation” for which no environmental clearance is required.
     Annexed to the affidavit is a letter dated 22 April 2024 (issued on
     the same date as the affidavit) by the Member Secretary of the State
     Environment Impact Assessment Authority, Assam to the Member
     Secretary, SEIAA, Assam in the following terms :
            “Inviting reference to the subject cited above, this is to
            inform you that the matter has been referred by the Special
            Chief Secretary (Environment & Forest), Govt. of Assam,
            inviting comments / opinion as to the requirement of prior
            Environmental Clearance (EC) for clearance of Tea bushes,
            uprooting /removal of shade / cover crops in respect of
            Doloo Tea Estate. On careful perusal of the averments
            made in the instant petition, it is to be stated herein that
            cultivation of Tea in Assam is falling within the category of
            Special Cultivation for which the Govt. of Assam / District
            Commissioner allot land within the ambit of Rules under
            the Assam Land and Revenue Regulation, 1886.
            It is pertinent to point out here that in a tea garden, tea
            bushes and shade trees are removed and uprooted in
            regular intervals once the trees grow old and there is
            loss of production of tea. Generally, Siris tree species
            (Albizia lebbeck/albizzia procera) which are fast growing
            indigenous species of trees in Assam, are planted as
            shade trees/cover crops and primarily used to meet the
            requirement of fuel wood for workers in the tea gardens.
            As per the Assam Tea Garden Act / Policy, clearing of
            tea bushes and shade trees are permissible. Moreover,
            tea bushes are considered as agricultural crops (Special
            Cultivation) and uprooting activity of such tea bushes and
            shade trees do not fall under any of the project / activity
            to the Schedule of the EIA Notification S.O. 1533(E)
            Dated 14.09.2006.
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             This is submitted for favour of your kind perusal and
             needful action.”
10. In pursuance of the directions of this Court, Ms Salma Sultana,
    a judge in the district judiciary in the State of Assam, posted as
    Secretary to the District Legal Services Authority Kachar submitted
    a report dated 27 April 2024. The report, inter alia, indicates that 89
    shade trees were found to be cut. Ms Sultana has also stated that
    “the entire area is mostly a dense forest, therefore, other possible
    cut down shade trees were not visible due to dense forest and thick
    bushes”. The report also indicates that according to the statement
    of the Circle Officer, Shri Arunjyoti Das, 41,95,909 tea bushes have
    been uprooted.
11. The Secretary of the District Legal Services Authority recorded
    statements on oath of witnesses who were tea garden workers, the
    Garden Manager, Circle Officer and Patwari among other persons.
    Several witnesses who were examined by the officer appointed by
    this Court have stated that:
      (i)    tea bushes were uprooted from Doloo Tea Estate Airport site
             with the help of JCBs in the month of May 2022;
      (ii)   the entire operation took place over three days and involved
             the use of about 200 to 250 JCBs ‘day and night’;
      (iii) shade trees were cut and uprooted; and
      (iv) during the operation the inhabitants were prevented from moving
           out of their homes.
12. The Court must take cognizance of the fact that the statements
    of these witnesses have not been tested on the anvil of cross-
    examination. At the same time, at this stage, it would prima facie
    appear that these statements would match with the statement of
    the Circle Officer to the effect that 41,95,909 tea bushes have been
    uprooted.
13. The contention of the State Government in the affidavit, which was
    tendered before this Court on 22 April 2024, was that tea bushes
    are removed routinely “even as a part of regular tea cultivation”
    for which no prior Environmental Clearance is required. To support
    this submission, reliance was placed on the communication of the
    Member Secretary of the SEAC in Assam which also records that in
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     a tea garden tea bushes and shade trees are removed and uprooted
     at regular intervals once the trees grow old and there is a loss of
     production of tea. The letter dated 22 April 2024 is a self-serving
     document prepared on the same date as the affidavit.
14. What warrants attention, however, is that in the present case, the
    clearance of the site cannot be unequivocally attributed to the
    cultivation activities of the tea estate. The clearance was evidently
    not a part of the regular maintenance of the tea estate but to facilitate
    the proposed new airport. The Solicitor General sought to urge
    that the possession of the site was handed over in June 2022 and
    hence the destruction of the vegetation in May 2022 was not by the
    respondents but likely by the inhabitants. It is inconceivable that an
    organized operation involving over 200-250 JCBs was done at the
    behest of the tea garden workers. Moreover, it has emerged that on
    11 May 2022 orders were issued by the District Magistrate under
    Section 144 CrPC. This was a prelude to the organized activities
    which took place in the month of May 2022, as recorded in the
    statements appended to the report of the DLSA. The affidavit of the
    Joint Secretary to the State government has been rather liberal with
    the truth by suppressing the actual state of facts.
15. Paragraph 2 of the notification dated 14 September 2006 requires
    prior Environmental Clearance “before any construction work or
    preparation of land by the project management is carried out except
    for the securing of land”. The nature of the activities which were
    carried out at the site was evidently of an extensive nature and is
    in breach of paragraph 2 of the notification.
16. There was a complete abdication of adjudicatory duties by the NGT
    to verify the authenticity of the grievance of the appellants. As an
    expert body which has been formed under a statute enacted by the
    Parliament, in the interest of the preservation of the environment, it
    was first and foremost the duty of the Tribunal to verify the authenticity
    of the grievance of the appellants.
17. The Tribunal, however, simply dismissed the OA having come to
    the conclusion that no Environmental Clearance had been issued.
    If the Tribunal were to enquire into the matter even on a prima facie
    assessment, the facts which have emerged before this Court would
    have come on the record. The perfunctory dismissal of the case by the
    NGT not only reflects a lack of due diligence but also demonstrates
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      a disregard for the gravity of the environmental concerns raised by
      the appellants. This casual, if not callous, approach to adjudication
      not only undermines the integrity of the judicial process but also
      compromises the very purpose for which the NGT was established
      – to safeguard the environment, ensure sustainable development
      and facilitate the effective and expeditious disposal of cases related
      to the protection and conservation of the environment, forests, and
      other natural resources. Such negligence on the part of the Tribunal
      sets a concerning precedent, eroding public trust in the efficacy of
      environmental governance mechanisms.
18. The State Government has filed an application for directions before
    this Court seeking the initiation of proceedings against the appellants
    allegedly for having misled this Court into passing of the order dated
    22 April 2024. During the course of the hearing, the Solicitor General
    has stated that the application is not being pressed.
19. From the material which has been placed on the record, we are
    clearly of the view that the authorities, in the present case, have acted
    in violation of the provisions contained in Para 2 of the notification
    dated 14 September 2006 by carrying out an extensive clearance at
    the site even in the absence of an Environmental Clearance.
20. The State Government has emphasised the need for establishing a
    civilian airport at Silchar which has led to the proposal to set up a
    Greenfield Airport on land admeasuring 335 hectares to which an
    additional component of 69 hectares has been added. The decision
    on whether an airport is situated at a particular place is a matter of
    policy. However, when the law prescribes specific norms for carrying
    out activities requiring an Environmental Clearance, those provisions
    have to be strictly complied with.
21. Environmental regulations are in place precisely to ensure that
    developmental projects, such as the establishment of airports, are
    undertaken in a manner that minimizes adverse ecological impacts
    and safeguards the well-being of both the environment and local
    communities. While acknowledging the importance of infrastructure
    development, it is paramount that such projects proceed in harmony
    with environmental laws to prevent irreparable damage to ecosystems
    and biodiversity. The requirement for Environmental Clearance
    serves as a crucial safeguard against unchecked exploitation of
    natural resources and helps uphold the principles of sustainable
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     development- which safeguards the interests of both present and
     future generations. Therefore, while the decision to establish an airport
     may serve broader policy objectives, it must be executed within the
     confines of legal frameworks designed to protect the environment
     and ensure responsible resource management. Failure to adhere
     to these norms not only undermines the integrity of environmental
     governance but also risks long-term environmental degradation and
     societal discord.
22. Setting up an airport is specifically within the ambit of Entry 7 of the
    Schedule to the notification dated 14 September 2006. Admittedly,
    no Environmental clearance has been issued till date. Development
    has to be in conformity with environmental standards prescribed by
    the law.
23. In consequence, there shall be a direction that absolutely no activity
    shall be carried out in breach of the provisions of the Notification
    dated 14 September 2006 at the site of the proposed greenfield
    airport at Silchar.
24. In the event that any application for the grant of Environmental
    Clearance has been filed or is filed hereafter, the processing of the
    application shall take place on the basis of the condition of the site
    as it existed prior to the date on which the illegal clearance of the
    tea bushes and shade trees took place in the proposed site of the
    greenfield airport.
25. In the above view of the matter, we allow the Appeals and set aside
    the impugned order of the National Green Tribunal dated 25 January
    2024.
26. Pending applications, if any, stand disposed of.


     Headnotes prepared by:                                Result of the case:
     Swathi H. Prasad, Hony. Associate Editor               Appeals allowed.
     (Verified by: Shadan Farasat, Adv.)