Below letter is a representation urging postponement of Public Hearing on 18th August 2020 regarding the Peripheral Ring Road (PRR) proposal of Bangalore Development Authority (BDA) being held in blatant disregard for rule of law, judicial directives and in violation of Central, State and Local Government orders relating to COVID-19 pandemic per Disaster Management Act, 2005
1. Principal Secretary
Karnataka Disaster Management Authority
State Emergency Operation Centre
Government of Karnataka
|2. Member Secretary|
Karnataka State Pollution Control Board
|3. Member Secretary|
Karnataka State Environment Impact Assessment Agency
Dept of Forest, Ecology and Environment, Government of karnataka,
|4. Deputy Commissioner, Bengaluru Urban District|
13th August 2020
Reg.: Representation urging postponement of Public Hearing on 18th August 2020 regarding the Peripheral Ring Road (PRR) proposal of Bangalore Development Authority (BDA) being held in blatant disregard for rule of law, judicial directives and in violation of Central, State and Local Government orders relating to COVID-19 pandemic per Disaster Management Act, 2005
Ref.: KSPCB Notice NO. PCB/CNP/07/GEN/19/1184 dated 13th July 2020
The aforesaid notice is issued by Karnataka State Pollution Control Board (KSPCB) on the claim that it is in conformance with the decision dated 17th March 2020 of Justice Dr. Dhananjaya Y Chandrachud and Justice Hemant Gupta of the Hon’ble Supreme Court of India in Bangalore Development Authority vs. Mr. Sudhakar Hegde & ors. (Civil Appeal No. 2566 of 2019). As you would be aware, by this decision the Surpreme Court set aside an earlier attempt by BDA and Karnataka State Environment Impact Assessment Authority (KSEIAA) to promote the said PRR, as it was held that the project and its approvals were in blatant disregard of the rule of law, and in violation of rationale and principles of environmental jurisprudence demanded to review and approve such a mega projects with massive and irreversible impacts.
It is imperative, therefore, to examine if the act of conducting the aforesaid Public Hearing in support of the PRR is in strict conformance with the aforesaid direction of the Hon’ble Supreme Court’s. Kindly see the following excerpts from the operative part of the decision:
“77. In the eventual analysis, compliance with the deliberative and streamlined process envisaged for the protection of the environment ensures a symbiotic relationship between the development of the nation and the protection of the environment.
79. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.
83 (iii) The appellant shall have due regard to the various deficiencies noted in the present judgment as well as ensure that additional precautions are taken to account for the prevailing state of the environment;
(iv) The appellant shall ensure that the requisite clearances under various enactments have been obtained and submitted to the SEAC prior to the consideration by it of the information submitted by the appellant in accordance with the OMs issued by the MoEF-CC from time to time;
(v) The SEAC shall thereafter assess the rapid EIA report and other information submitted to it by the appellant in accordance with the role assigned to it under the 2006 Notification. If it is of the opinion that the appellant has complied with the 2006 Notification as well as the directions issued by this Court, only then shall it recommend to the SEIAA the grant of EC for the proposed project. The SEAC and the SEIAA would lay down appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment and other conditions it deems fit;” (Emphasis supplied)
It is evident from the above that the Hon’ble Supreme Court has directed that the project may be examined for approval only if it complies with the following:
a) “A framework of environmental governance committed to the rule of law” and which “requires a regime which has effective, accountable and transparent institutions”. Further, the Court has directed that the decision making must be characterized in a way that itis based on “responsive, inclusive, participatory and representative decision making”. As the Hon’ble Court has held, “Environmental governance is founded on the rule of law and emerges from the values of our Constitution”.
b) The Hon’ble Court has additionally held that any effort to secure environmental clearance for the project may be proceeded with only if the “appellant shall ensure that the requisite clearances under various enactments have been obtained and submitted to the SEAC prior to the consideration by it of the information submitted by the appellant in accordance with the OMs issued by the MoEF-CC from time to time”.
Taking due consideration of the Hon’ble Court’s directives, the following is stated:
i) The Detailed Project Report (DPR) of the proposed PRR is not yet ready. It is a matter of public record that the DPR is not a part of the application seeking environmental clearance, nor is a copy available on the website of the BDA for public review. Such being the case, it is simply impossible to prepare any impact assessment, most especially an Environment Impact Assessment –the latter can only be done only when a DPR is prepared and has secured necessary approvals.
ii) The process of preparing a DPR for the PRR needs to fulfil the criteria of formulation of a ‘scheme’ as per the provisions of Karnataka Town and Country Planning Act (KTCPA), read with applicable provisos of the subordinate Bangalore Development Authority Act. From a review of public records it is apparent that no effort has been made whatsoever by the implementing agency to secure such permissions, particularly in consonance with Sec 14A of the KTCPA, which involves sharing detailed information of the intent of formulating such a scheme with wide public, and most particularly with those who might lose their homes, businesses, land, livelihoods, etc. As held by the Hon’ble Supreme Court, such decision making meets the criteria of being “responsive, inclusive, participatory and representative”.
iii) The Hon’ble Supreme Court has also clarified that the principle of representative decision making highlighted above requires that it meet this particular criteria “Environmental governance is founded on the rule of law and emerges from the values of our Constitution”. Therefore, this means and implies that the representative decision making demanded for this specific project is in comprehensive compliance with Article 243ZE of the Constitution of India. Consequently, the project DPR must require prior approval of the Metropolitan Planning Committee and only then can the SEAC process the project proponent’s application for environmental clearance. It is a matter of public record that no such approvals from MPC have been secured as yet.
iv) In the absence of a DPR, it is also not possible to assess who is directly affected, be it by loss of home, loss of livelihood, social fragmentation, loss of ecology, etc. Bangalore Urban Deputy Commissioner being the Revenue Officer of the district has not clarified, as yet, if there has been any application securing access to land records from the project proponent, and if this has been processed and approved by the Government. Such in-transparency has caused a climate of fear over multiple forms of dispossession in lakhs of people – especially those living in the proposed impacted area (as per some patchy information released thus far, including through the EIA).
v) A cursory review of the project documents also reveal that there is great discordance between the land use for the proposed project and existing land use plans, and that no effort has been lawfully made to cure this anomaly. Needless to state, this is a classic case of speculative urbanism at its worst, and could result in high levels of corruption becoming endemic to the project approval. This is in absolute contradiction to the Hon’ble Supreme Court’s direction that this project’s approval “requires a regime which has effective, accountable and transparent institutions”, and this is obviously not meant to be a ritual exercise. In that sense, the entire decision making relating to this mega project with mega and irreversible impacts ought to be of a quality that fulfills all standards of environmental jurisprudence, especially Principle of Free, Prior and Informed Consent, Principle of Sustainable Development and the Doctrine of Public Trust.It appears that the State Government, project proponent and environmental regulatory agencies have not demonstrated any will whatsoever to comply with this direction of the Hon’ble Supreme Court, or produced documentation to demonstrate it indeed has.
vi) In regard to the criticality of land use planning per the KTCPA, the Hon’ble High Court of Karnataka has held in Environment Support Group and anr. Vs. Bangalore Metro Rail Corporation Ltd. and ors (WP 13241/2009) that “if a direction is issued to the State Government, as also, the Bangalore Development Authority to ensure that in future, in case they desire to change the land use, as has been depicted in the master plan, the competent authority shall follow the procedural mandate depicted in Section 14-A of the Karnataka Town and Country Planning Act, 1961 And likewise in case of making a town planning scheme, the State Government, as also the Bangalore Development Authority shall comply with the procedure contained in Sections 29, 30, 31, 32 and 34 of the Karnataka Town and Country Planning Act, 1961”. In the said matter, the Hon’ble Court further directed that “(n)eedless to mention, that in case of violation of direction issued by this Court, based on statement made to this Court, the concerned officer/official shall be held responsible, for his having disobeyed the order passed by this Court, as also, the prescribed mandate of law”. (Emphasis supplied). Clearly this direction is being frontally violated by the actions of the State, project proponent and regulatory agencies, an activity that also violates the aforesaid directive of the Hon’ble Supreme Court requiring comprehensive legal compliance.
vii) In regard to land acquisition that this mega project involves, there is no demonstration whatsoever that the project proponent and State Government have any intention whatsoever of complying with the provisions of the applicable land acquisition laws, in particular The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013. For land to be notified for acquisition it is absolutely essential that the PRR, first and foremost, has complied with KTCPA providing due opportunities for affected public to inspect and comment on the changes proposed from the existing land use plan. This is a crucial exercise in shaping relief to those who are adversely affected by loss of homes, livelihoods, etc. Such an exercise also assists in developing alternatives, including avoiding loss of ecology due to loss of lakes and forests, and farmland, and possibly providing, through due public examination, an exploration of alternatives that promote mobility without causing destruction. There appears to be no effort at all in this direction.
viii) A crucial examination demanded of all regulatory and state agencies is also to ensure that the project is in strict compliance with directions of the Hon’ble High Court of Kantataka in Enviornment Support Group and ors. Vs. State of Karnataka and ors. (WP 817/2008), read with the directions of the Court in Citizen Action Group vs BBMP and ors, (WP 38401/2014) which pertain to critical importance of protecting lakes and raja kaluves, and that without in any manner disturbing their no-development zones. Prima facie, from the documents provided by the PRR’s project proponent, it is apparent there is an active proposal to wilfully disobey these orders. Moreover, such blatant disregard for judicial directives is being explained away through an FAQ released by one Dr. H. R. Shantha Rajanna, Engineering Member of BDA, and a copy of the same is enclosed.
In short, the compliance demanded in terms of the aforesaid directions of the Hon’ble Courts, and as per law, is to:
1. Prepare a fresh, honest and proper EIA for the proposed PRR, unlike the fraudulent one prepared before which the Hon’ble Supreme Court discarded.
2. Crucially, the fresh EIA is to be prepared only when necessary prior approvals for the proposed project have been secured from all other agencies.
3. The onus of ensuring such compliance has been secured by the project proponent, has been placed by the Hon’ble Supreme Court on the SEAC.
4. In that sense the SEAC is duty bound to demonstrate to the wide public that these directives have been complied with by the project proponent prior to it approaching the agency for environmental review and clearance.
It is a matter of public record that the SEAC has not demonstrated compliance with this direction of the Hon’ble Supreme Court, and thus has also joined the project proponent and KSPCB in violating the rule of law and the judicial orders.
A matter of very serious concern is that the said Public Hearing has been called in fundamental violation of directives of the Union Ministry of Home Affairs and the orders of the Government of Karnataka per the Disaster Management Act, 2005 that public assemblies must not be organised in an effort to contain the spread of COVID-19 disease. These orders are operational as of date. They do not grant any exception to such Public Hearings as is sought to be held in the instant case.
Further, despite widespread appeals from the public to postpone the Public Hearing to a time when it can be held in strict compliance of law and also when the public can participate without fear of being infected by the deadly disease, it is shocking that thus far neither the Karnataka Disaster Management Authority nor the Health Directorate, or even the Chief Secretary, have initiated appropriate actions to cause the postponement of the Hearing until it can be held sans a climate of fear for one’s life. In effect what the KSPCB, the District authorities and KSEIAA are promoting by organising this Public Hearing is the wilful disobedience of these directives that have been issued to protect lives and stop the spread of a deadly pandemic.
Taking into account all of the above, I urge you to direct the appropriate authorities to postpone the aforesaid Public Hearing. In the event the Hearing is held, putting at grave risk the lives of the affected and wide public, the Karnataka Disaster Management Authority is duty bound to initiate actions against officers involved in so holding the public hearing in blatant disregard of law and judicial orders.
Leo F. Saldanha
Environment Support Group
1. Chief Secreatary, Government of Karnataka
2. Principal Secretary and Addl. Chief Secretary, Dept of Health, Government of Karnataka
3. Commissioner, Commissionerate of Health and Family Welfare, Government of Karnataka
4. Secretary, Union Ministry of Environment, Forests & Climate Change