National Green Tribunal
Anil Kumar Yadav vs State Level Environment Impact ... on 24 December, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 01 to 03 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Appeal No. 54/2020
(I.A. No. 439/2020)
Anil Kumar Yadav Appellant
Versus
State Environment Impact Assessment
Authority, State of U.P. & Ors. Respondent(s)
WITH
Appeal No. 55/2020
(I.A. No. 440/2020)
Anil Kumar Yadav Appellant
Versus
State Environment Impact Assessment
Authority, State of U.P. & Ors. Respondent(s)
WITH
Appeal No. 56/2020
(I.A. No. 441/2020)
WITH
Caveat No. 15/2020
Anil Kumar Yadav Appellant
Versus
State Environment Impact Assessment
Authority, State of U.P. & Ors. Respondent(s)
Date of hearing: 24.12.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Appellant: Mr. Sanjay Upadhyay, Advocate
Mr. Sharad Chauhan, Advocate for Caveator in Appeal no. 56/2020
ORDER
1. Appeal no. 54/2020 has been preferred against the grant of Environmental Clearance (EC) by the State Environment Impact Assessment Authority (SEIAA), UP on 19.11.2020 for Dolo Stone (Gitti 1 Boulder) at Araji No. 5593 Ka, Khand -08, village - Billimarkundi, Tehsil-
Robertsganj, District - Sonbhadra, U.P. (Leased Area - 4,230 hac). Other appeals are said to be similar.
2. Principal contention in the appeals is that the projects in question, though otherwise Category B, have to be treated as Category A, requiring appraisal by the MoEF&CC and not by SEIAA, in terms of the 'General Condition' appended to the EIA Notification dated 14.09.2006, the same being in 'Critically Polluted Industrial Area', notified as such. Reliance has been placed on order of this Tribunal dated 20.11.2020 in appeal No. 04/2020, Abhinav Gramodyog & Seva Sansthan v. State Level Environment Impact Assessment Authority, UP, Ors., dealing with the issue as follows:-
2. Main grievance of the appellant was that the project falls under 'red'/'orange' category of industrial sectors and exists in the Critically Polluted Industrial Areas (CPAs) as notified by MoEF&CC, Govt. of India. Thus, it should have been treated as category 'A' project and procedure for such category should have been followed. Appraisal was required to be done by the MoEF&CC and not by the SEIAA as per Office Memorandum dated 31.10.2019 read with Notification dated 14.09.2006.
3. On 03.03.2020, the Tribunal considered the matter and sought response from the SEIAA, U.P by email. However, when the matter was taken up on 7.10.2020, it was seen that no response was received even after six months. Accordingly, the Member Secretary, SEIAA was required to show-cause why coercive measure may not be taken.
4. Thereafter, the Member Secretary, SEIAA has filed response on 15.11.2020 justifying grant of EC by SEIAA, on the basis of office memorandum issued by the MoEF&CC dated 30.12.2019 that SEIAA could grant EC when the process has already been initiated even though as per Notification dated 14.09.2006 read with general condition, the project was to be treated as category 'A' being in 'critically polluted zone', though otherwise it is category 'B' project.
5. The general condition appended to the 14.9.2006 notification is as under:-
"General Condition (GC):
Any project or activity specified in Category 'B' will be appraised at the Central level as Category 'A', if located in 2 whole or in part within 10 km from the boundary of : (i) Protected areas notified under the Wildlife (Protection) Act, 1972); (ii) Critically polluted areas as identified by the Central Pollution Control Board from time to time; (iii) Eco-
sensitive areas as notified under Section 3 of the Environment (Protection) Act, 1986, such as, Mahabaleshwar Panchgani, Matheran, Pachmarhi, Dahanu, Doon Valley and
(iv) inter-State boundaries and international boundaries:"
6. We have heard learned counsel for the parties. We note that though response was sought only from the SEIAA in the first instance, since the project proponent has put in appearance voluntarily through counsel, we have heard him, without a formal notice.
7. Learned Counsel for the appellant submitted that the MoEF&CC had no jurisdiction to issue a clarification diluting the Notification dated 14.09.2006 as held by the Hon'ble Supreme Court in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors, 2020 SCC OnLine SC 347, holding as follows:-
"24. The omission in the appeal to make any attempt to sustain the circular dated 14 May 2002 with reference to the provisions of Section 3 of the Environment Protection Act 1986 is significant. For an action of the Central government to be treated as a measure referable to Section 3 it must satisfy the statutory requirement of being necessary or expedient "for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environment pollution". The circular dated 14 May 2002 in fact does quite the contrary. It purported to allow an extension of time for industrial units to comply with the requirement of an EC. The EIA notification dated 27 January 1994 mandated that an EC has to be obtained before embarking on a new project or expanding or modernising an existing one. The EIA notification of 1994 has been issued under the provisions of the Environment Protection Act 1986 and the Environment Protection Rules 1986, with the object of imposing restrictions and prohibitions on setting up of new projects or expansion or modernisation of existing project. The measures are based on the precautionary principle and aim to protect the interests of the environment. The circular dated 14 May 2002 allowed defaulting industrial units who had commenced activities without an EC to cure the default by an ex post facto clearance. Being an administrative decision, it is beyond the scope of Section 3 and cannot be said to be a measure for the purpose of protecting and improving the quality of the environment. The circular notes that there were defaulting units which had failed to comply with the requirement of obtaining an EC as mandated. The circular provided for an extension of time and inexplicably introduced the notion of an ex post facto clearance. In effect, it impacted the obligation of the industrial units to be in compliance with the law. The concept of ex post facto clearance is fundamentally at odds with the EIA notification dated 27 January 1994. The EIA notification of 1994 contained a 3 stipulation that any expansion or modernisation of an activity or setting up of a new project listed in Schedule - I "shall not be undertaken in any part of India unless it has been accorded environmental clearance". The language of the notification is as clear as it can be to indicate that the requirement is of a prior EC. A mandatory provision requires complete compliance. The words "shall not be undertaken" read in conjunction with the expression "unless" can only have one meaning: before undertaking a new project or expanding or modernising an existing one, an EC must be obtained. When the EIA notification of 1994 mandates a prior EC, it proscribes a post activity approval or an ex post facto permission. What is sought to be achieved by the administrative circular dated 14 May 2002 is contrary to the statutory notification dated 27 January 1994. The circular dated 14 May 2002 does not stipulate how the detrimental effects on the environment would be taken care of if the project proponent is granted an ex post facto EC. The EIA notification of 1994 mandates a prior environmental clearance. The circular substantially amends or alters the application of the EIA notification of 1994. The mandate of not commencing a new project or expanding or modernising an existing one unless an environmental clearance has been obtained stands diluted and is rendered ineffective by the issuance of the administrative circular dated 14 May 2002. This discussion leads us to the conclusion that the administrative circular is not a measure protected by Section 3. Hence there was no jurisdictional bar on the NGT to enquire into its legitimacy or vires. Moreover, the administrative circular is contrary to the EIA Notification 1994 which has a statutory character. The circular is unsustainable in law."
8. In view of the above, the circular of the MoEF&CC dated 30.9.2019, in exercise of administrative powers, cannot have the effect of diluting the 14.9.2006 notification which is statutory under section 3 of the E.P. Act. Thus, SEIAA could not be clothed with the power to issue EC in violation of notification dated 14.9.2006 under which the project in polluted zone has to be appraised as 'A' category by the MoEF itself.
9. Learned Counsel for the SEIAA has not been able to dispute the above legal position. Learned counsel for the project proponent submitted that EC having been granted as per instructions of the MoEF, the project proponent should not suffer. This submission cannot be accepted. The law has to take its course and if the EC granted is against law laid down by the Hon'ble Supreme Court, the same has to prevail.
10. In view of the above, prima facie, the impugned EC cannot be sustained. Though Counsel for the project proponent appears on caveat, he is unable to advance any argument against the above proposition.
However, before passing final order, we consider it appropriate to require 4 a response from the SEIAA, UP which may be furnished before the next date by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.
11. In the meanwhile, SEIAA, UP may examine the matter and if it is satisfied that the EC could not have been granted, it may take appropriate further action in accordance with law.
A copy of this order be forwarded to SEIAA, UP by e-mail for compliance.
The Appellants may serve a set of papers on SEIAA, UP and file an affidavit of service within one week from today.
List for further consideration on 02.03.2021.
Adarsh Kumar Goel, CP S.K. Singh, JM Dr. S.S. Garbyal, EM Dr. Nagin Nanda, EM December 24, 2020 Appeal Nos. 54/2020, 55/2020 & 56/2020 A 5