National Green Tribunal
Pratap Chandra Mohanty vs 1. State Of Odisha Through Principal ... on 27 July, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 157/2022/EZ
(I.A. No.07/2023/EZ)
IN THE MATTER OF:
1. Pratap Chandra Mohanty,
S/o Sunakar Mohanty,
Aged about 42 years,
At:-Talasanga, Via:-Marshaghai,
P.O.-Talasanga, P.S.-Patankura,
Via:-Marshaghai, District-Kendrapara,
Pin - 754213,
2. Nalini Kumar Swain,
Aged 65 years,
S/o Nishakar Swain,
At-Nakhara, P.O.-Phulnakhara, P.S.-Pahal,
District-Khurdha,
Pin - 754001,
3. Pratap Kumar Das,
Aged about 65 years,
S/o Late Dhrub Charan Das,
At:-Kacharamal, P.O.-Phulnakhara,
District-Cuttack, P.S.-Cuttack Sadar,
Pin - 75400,
4. Ganesh Chandra Behera,
Aged about 64 years,
S/o Ishwar Chandra Behera,
R/o Kacharamal, P.O.-Phulnakhara,
District-Cuttack, P.S.-Cuttack Sadar,
Pin - 754001,
5. Guru Prasad Mohapatra,
Aged about 46 years,
S/o Kamal Prasad Mohapatra,
At-Kurunti, Via-Phulanakahara,
P.S.-Cuttack Sadar, P.O.-Kothapatana,
District-Cuttack,
Pin - 754001,
....Applicant(s)
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Versus
1. State of Odisha,
Through Principal Secretary to Government of Odisha,
General Administration and P.G. Department,
Secretariat Building, Bhubaneswar,,
District-Khurdha, Odisha,
Pin - 751001,
2. Additional Chief Secretary,
Forest and Environment, Climate Change Department,
Government of Odisha,
Kharbela Bhawan, Bhubaneswar, District-Khurdha,
Pin - 751001,
3. The Vice Chairman, Bhubaneswar Development Authority,
Akash Shova Building, Sachivalaya Marg,
Bhubaneswar - 751001,
4. Commissioner, Bhubaneswar Municipal Corporaiton,
Vivekananda Marg, near Kalpana Square,
Bhubaneswar - 751014,
5. District Collector & District Magistrate, Khordha,
At-New Collectorate, P.O.-Pallahat,
District-Khordha,
Pin - 752056,
6. The Member Secretary,
State Environment Impact Assessment Authority, Odisha,
5RF-2/1, Acharya Vihar, Unit-IX,
OPTCL Colony, Anand Bazar, Bhoi Nagar,
Bhubaneswar - 751022,
7. Member Secretary,
Odisha State Pollution Control Board,
Paribesh Bhawan, A/18, Nilakantha Nagar,
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Unit-VIII, Bhubaneswar,
Pin - 751012,
8. Union of India,
Through the Secretary,
Ministry of Enviornment, Forests and Climate Change,
Indira Paryavaran Bhawan, Jorbagh,
New Delhi - 110003, ...(deleted vide order dt.20.04.2023)
9. Revenue Divisional Commissioner, (Central Division),
Cuttack,
Chandini Chowk, Cuttac, Odisha,
Pin - 753002,
10. Additional Chief Secretary, Revenue and Disaster
Management Department, Government of Odisha,
Lokaseva Bhawan, Bhubaneswar,
Pin - 751002,
11. Siksha O Anusandhan University,
Repreesnted by its Founder President, Prof. (Dr.)
Manojranjan Nayak,
224, Dharma Vihar, Khordha, Odisha,
Pin - 751030,
....Respondent(s)
COUNSEL FOR APPLICANTS:
Mr. Sankar Prasad Pani, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Tarun Patnaik, ASC for R-1, 2, 5, 9 & 10,
Mr. Dayananda Mohapatra, for R-3,
Mr. Rajib Ray, Advocate for R-4,
Mr. Dipanjan Ghosh, Advocate for R-7,
Mr. Sanjay Upadhyay, Advocate a/w Ms. Mansi Bachani & Ms.
Gitanjali Sanyal, Advocates for R-11,
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JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE DR. ARUN KUMAR VERMA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- July 21st, 2023 Pronounce On:- July 27th, 2023 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. The present Original Application has been filed by the Applicants alleging that the Respondent No.11, Siksha O Anusandhan University, has applied for grant of Environmental Clearance for a project which has a proposed built-up area of 89,712.23 square meters and though the application for grant of Environmental Clearance is still pending and has not yet been granted, the Respondent No.11 has commenced making constructions.
3. It is further stated that State Environment Impact Assessment Authority, (SEIAA), Odisha, vide its letter dated 23.11.2022 filed as Annexure-3 (page-56 of the paper book), has stated that though Environmental Clearance has been sought by the Institute of Medical Sciences & SUM Hospital Campus-II at Nakhara under 4 Bhubaneswar Municipality, the Environmental Clearance of the said proposal is under process at State Environment Impact Assessment Authority, (SEIAA), Odisha.
4. It is alleged that this construction comprises of a building (2B+G+9) over Plot Nos.415, 416, 297, 417, 419, 296, 298, 418, 299, 420, 287, 415/4195, under Khata No.626/1, in Mouza- Phulnakhara, Bhubanewar. It is stated that the proposed construction is of IMS & SUM Hospital (Campus-2).
5. It is alleged that the kissam of the land in question is 'Nayanjori' which is a water body and which has been allotted by the General Administration Department, Government of Odisha. The allegation is that 'Nayanjori' is a water body through which storm water is stored and discharged. It is stated that the plots in question being a water body Kissam-Nayanjori, the same could not have been allotted for construction of the project of Respondent No.11 by the General Administration Department, Bhubaneswar.
6. It is also alleged that the General Administration Department, Government of Odisha, vide its letter dated 04.09.2021, has allotted 8.94 acres of water body for construction of the project of Respondent No.11.
7. It is also alleged that the Plot No.413 is recorded as 'Lakheswar Minor Irrigation Canal' but is now being occupied by the project of the Respondent No.11.
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8. It is stated that the Nayanjori originally was called Prachi River in the Sabik Record and this river extended over 78 kilometers with a catchment area of 600 square kilometers as part of the Mahanadi River Delta in Odisha, in the Districts of Puri, Khurda and Cuttack, which comprise the Prachi Valley region.
9. The contention of the learned Counsel for the Applicants is that the land which is a water body must be preserved as a water body and cannot be converted for any use other than water body in view of the judgment of Hon'ble Supreme Court of India, (2001) 6 SCC 496, (Hinch Lal Tiwari Vs. Kamala Devi & Ors). and large number of other judgments e.g. (2011) 11 SCC 396 (Jagpal Singh & Ors. Vs. State of Punjab and Ors.)
10. At the time of admission, the Tribunal had directed that until further orders, there shall be a stay on all construction activity over the land in question.
11. The Respondent No.11, Project Proponent, filed a Writ Petition (C) No.35001 of 2022 (Siksha O Anausandhan vs. State of odisha & Ors.), challenging the interim order of this Tribunal dated 12.12.2022 and the Hon'ble High Court of Orissa vide its order dated 16.01.2023, stayed the operation of the order dated 12.12.2022 till the next date of listing. The interim order of the Hon'ble High Court dated 16.01.2023 reads as under:-
"ORDER 16.01.2023.
W.P.(C) No.35001 of 2022 & I.A. No.17400 of 2022 6
1. This matter is taken up by hybrid mode.
2. Heard Dr. Purusottam Chuli, learned advocate appearing for the petitioner and learned counsels appearing for the opposite parties.
3. The petitioner is a Charitable Trust named and styled as "Sikshya "O" Anusandhan" having its registered office at Plot No. 224, Dharma Vihar, P.O. Jagamara, P.S. Khandagiri, Bhubaneswar, District-Khordha.
4. By way of the present Writ Petition, the petitioner challenges the order dated 12.12.2022 passed by the National Green Tribunal, Eastern Zone Bench, Kolkata in Original Application No. 157/2022/EZ which has stayed all construction activities over the land in question ex parte.
5. The Opp. Party No. 11 to 15 herein, were the applicants before the National Green Tribunal, Eastern Zone Bench, Kolkata, who filed an application bearing No. 157/2022 U/s. 18(1) read with Section 14(1) & 15 of the National Green Tribunal Act, 2010 inter alia alleging therein that -
(a) Pending grant of Environmental Clearance the petitioner has commenced construction over the land in question (b) the State Environment Impact Assessment Authority, (SEIAA), Odisha vide its letter dated 23.11.2022 has communicated that the application for grant of Environmental Clearance is still under process (c) The Petitioner has already commenced construction of IMS & SUM Hospital (Campus-II) over the land in question (d) The Kisam of the land in question is "Nayanjori" through which storm water is discharged, which could not have been allotted by the General Administration Department, Government of Odisha. (e) It is also submitted that the land which is a water body must be preserved as a water body and cannot be converted for any use other than water body in view of the judgment of Hon'ble Supreme Court of India in the case of Hinch Lal Tiwari Vs. Kamala Devi &Ors reported in (2001) 6 SCC 496.
6. Heard learned Counsel for the parties. It is ex facie clear that the major lis in question pertains to (a) the nature i.e. the Kisam of the land in question and (b) construction without a subsisting Environmental Clearance (EC). Admittedly, in the present case the land 7 has been allotted by the State itself by the General Administration Department. Without delving into the specifics, the Kisam of "Nayanjori" merely means a water drainage roadside land or plot of land which can be used as a passage to approach the main road running on a canal embankment. Therefore, as a corollary whenever a road is constructed lands abutting both sides automatically become "Nayanjori" in nature. The same bears no adverse environmental significance but the said land does help in recharging the ground aquifers. Further in light of the above discussion, the allegation that the Nayanjori originally was called Prachi River in the Sabik Record and this river extended over 78 kilo meters with a catchment area of 600 square kilo meters as part of the Mahanadi River Delta seems grossly misconceived without any evidence on record.
7. During the course of the hearing on 12.01.2023 a question was put to the learned Senior Counsel Shri Ashok Mohanty appearing for the Petitioner with regard to the maintainability aspect of the instant petition. To that end, reliance was rightly placed by him on the decision of the Supreme Court of India in the case of M.P. High Court Advocates Bar Assn. v. Union of India and Anr1 wherein, it has been held that the power to exercise of judicial review by the High Courts under Article 226 and 227 of the Constitution of India qua the NGT cannot be curtailed by following the diktat of L Chandra Kumar v. Union of India2 which observed as follows:-
"22. It is also noteworthy that nothing contained in the NGT Act either impliedly or explicitly, ousts the jurisdiction of the High Courts under Article 226 and 227 and the power of judicial review remains intact and unaffected by the NGT Act. The prerogative of writ jurisdiction of High Courts is neither taken away nor it can be ousted, as without any doubt, it is definitely a part of the basic structure of the Constitution. The High Court's exercise their discretion in tandem with the law depending on the facts of each particular case. Since the High Court's jurisdiction 8 remain unaffected, the first question is answered in the negative, against the petitioners."
Thus, he pointed out that the High court is well within its jurisdiction to entertain this petition.
8. There is no squabble that the GA Department is custodian of the land in question and must comply with all legal formalities while allotting lands. The principal concern that this Court had on the earlier date of hearing was that pending the grant of Environmental Clearance, the party in question had commenced construction work. However, such a position now stands changed with the grant of the Environmental Clearance by the Ministry of Environment, Forest and Climate Change, Government of India, New Delhi for the project in question after the requisite legal due diligence. It has been brought to the attention of this Court that the Government of India has granted Environmental Clearance during the pendency of the present Writ Petition on 3.01.2023 vide EC Identification No. EC23B038OR195241.
9. That being the case, the allegations with regard to the Kisam i.e nature of land being ex facie flimsy in nature; coupled with the fact that the Environmental Clearance has now been granted by the Ministry of Environment and Forest, Government of India, the primary issue raised in the Original Application before the learned NGT seems to have attained a quietus. Be that as it may, the same needs some further consideration to mould the appropriate relief.
10. It is borne out from the records of the case that an ex parte impugned order dated 12.12.2022 has been passed by learned NGT staying the construction activity over the land in question. The said order was passed exparte without giving an opportunity of hearing to the present petitioner. Even the clarification related to the issue of "fencing does not construe to be construction activities"
was not shown to the learned Tribunal by the Applicants.
11. In view of the above, issue notice to the opposite parties.
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12. Five spare copies of the writ petition be served on the learned counsel for the opposite party Nos. 1, 2, 5, 9 and
10. Since a copy of the petition is stated to have been served on opposite party No.8, it need not be served again on him.
13. Issue notice to the opposite party Nos. 3, 4, 6, 7, 11 to 16 through Regd. Post with A.D.. Requisites be filed within three working days.
14. List this matter on 16th of February, 2023.
15. As an interim measure, the impugned order dated 12.12.2022 passed by learned National Green Tribunal, Eastern Zone Bench, Kolkata in O.A. No. 157/2022/EZ under Annexure-2 is hereby stayed till the next date.
16. Issue urgent certified copy of the order as per Rules in course of the day."
12. However, the Hon'ble High Court by its final judgment and order dated 15.03.2023 disposed of the said Writ Petition observing that the 'Tribunal is free to pass final order uninfluenced by any of the observations made hereinabove. However, in the interim the Hon'ble High Court directed that since the petition before the National Green Tribunal is still pending adjudication, the petitioner be permitted to carry out construction work within the permissible contours of law in line with the approval and permissions granted to it by the competent authority. The judgment and order of the Hon'ble High Court dated 15.03.2023 reads as under:-
"ORDER 15.03.2023
1. This matter is taken up through Hybrid Arrangement.
2. Heard learned counsel for the parties.
3. The present Writ Petition is directed against an ex parte interim order dated 12.12.2022 passed by the Hon'ble National Green Tribunal, Eastern Zone Bench, Kolkata in Original Application No. 157/2022/EZ. The said 10 matter was admitted by this Court vide its order dated 16.01.2023. Subsequently all parties have entered appearance and the pleadings have been completed by the parties. The interim order impugned directed inter alia that "until further orders, we direct that there shall be a stay on all construction activity over the land in question" thereby directing a blanket ban on all "construction" activities. It is this part of the order passed by the Hon'ble NGT that was stayed by this Court vide its order dated 16.01.2023.
4. From the pleadings filed before this court that the Respondent No.1 the Odisha State Pollution Control Board (OSPCB) has granted necessary permission i.e. "Consent to Establish" under Section 25 of the Water (Prevention & Control of Pollution) Act, 1974 and under Section 21 of the Air (Prevention & Control of Pollution) Act, 1981 vide letter No. 6854 dated 3.01.2023 for the construction of the hospital campus over the land in question after receiving the required clearances and approvals prior thereto. More importantly, the State Environment Impact Assessment (SEIA) has also accorded "Environmental Clearance" for the construction of the hospital campus on behalf of the Ministry of Environment, Forest and Climate Change, GoI on 2.01.2023. It is pertinent to note at this juncture that the SEIA has taken into account the objections received during the consideration for the grant of the Environmental Clearance which are akin to the substratum of the allegations raised i.e. that the construction work was being done without the requisite approvals. However, a bare perusal of the environment clearance so granted unambiguously provides as under;
"4. The SEAC have appraised the proposal in its meeting dated 02.11.2022 and recommended for grant of Environmental Clearance for the project valid for a period of 10 years, stipulating various conditions.
5. A complain petition has been received by SEIAA on dated 18.11.2022 in regard to the project. The proposal was placed in the 102nd meeting and the Authority 11 decided to request SPCB to conduct site inspection and submit a report in regards to the violations as alleged in the complaint petition made by Public on construction of Hospital building. Now, the SPCB vide their letter no. 954/SEAC-MISC-II dated 17.12.2022 has submitted site inspection report with the following observation: -
i) The eleven nos. of plots measuring 2.07 Ha have been converted from "Nayanojori" kissam to Gharabari Kissam by competent authority as per the ROR.
ii) The Land Use and Land Cover (LULC) map approved by Bhubaneswar Development Authority (BDA) shows that the project site is categorized under public and semi-public zone.
iii) There is no water reservoir or ponds exist over the land.
iv) Two plots in the project area i.e., 419 and 420 is used by the public as an approach road to the Lakheswar Temple situated about 100 meter in the South East of the plot.
v) Pillar posting have been made and no construction activity were found to be carried out except levelling of ground, boundary wall at the southern part of the site and installation of three (03) nos. of bore wells within the demarcated plot area. In addition, three number of labour hutments were constructed outside the pillar posting project area"
6. The matter was further examined in the State Environment Impact Assessment Authority (SEIAA), Odisha in its 104th meeting held on 29.12.2022 and authority observed the following ;
(i) Based on the undertaking submitted by the project proponent as well as the site inspection report of SPCB dated 17.12.2022, the SEIAA concluded that the construction activities so far carried out by the project proponent are admissible for securitizing the land as per O.M. No. F. No. IA3-22/10/2022-IA.III [E 177258] dated 29.03.2022 of MoEF& CC, Govt. of India.The kisam of the land has been converted to "Gharabari" by the competent authority.
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(ii) Hon'ble NGT vide its order dated 12.12.2022 on O.A. no. 157/2022(EZ) in the matter has directed that until further order, there shall be a stay on all construction activity over the land in question.
(iii) The SEAC has already recommended the proposal for grant of EC with stipulated conditions.
7. Environmental Clearance (EC) is granted to the project valid for a period of 10 years under the provisions of EIA Notification No. S.O. 1533 (E) dated the 14th September, 2006 of the Government of India in the erstwhile Ministry of Environment and Forests, as amended from time to time for "Proposed Construction of IMS & SUM Hospital (Campus-2) building (2B+G+9) on Khata No - 626/1 and Plot no.
287,296,297,298,299,415/4195,416,417,418,419, 420 With Total built-up area of 89712.23 Sqmt. located at Mouza-Phulnakhara, Tahasil Bhubaneswar, District- Khordha" with the following stipulations, environmental conditions and safeguards."
5. There is a further stipulation under clause 7.21 (v) that the subcommittee of SEAC will visit the site within 3 months from the date of issue of the environmental clearance to verify the progress of the project and a dereliction in that regard in entail revocation of the EC so granted. The same thus has some bearing on the matter given the fact the EC in question has a specific time frame and manner of implementation envisaged for the construction work for which the same has been granted as hereinabove. It is also pertinent to note at this juncture that reliance was placed on an Office Memorandum issued by the Ministry of Environment and Forests on 19.08.2010 which deals with "activities which can be undertaken without/prior to obtaining environment clearance". It is this notification which states that prior to obtaining an environmental clearance no construction activity whatsoever can be undertaken except for fencing of the site to protect it from getting encroached and construction of temporary sheds for the guards. It may, however, be noted that the same is rendered nugatory in view of the fact that 13 the EC as reproduced hereinabove is a fullfledged environmental clearance has been granted to the petitioner herein thereby reliance on the aforesaid Office Memorandum is meaningless.
6. Be that as it may. It is clarified that the above observations are being made only to bring home the point that the balance of convenience prima facie lies in favour of the petitioner herein and the same are not being made to dwell upon the merits of the matter which the Hon'ble NGT is in seisin over the matter which is alone competent to decide in accordance with law and materials placed before it. The principle of balance of convenience requires that where an irreparable loss is likely to be caused to a party the same needs to be addressed and protected. The fact that the project in question relates to the establishment of the hospital dedicated to the people of the state at large cannot be lost sight of and the fact that any undue delay will cause irreparable loss to the petitioner which cannot be ruled out.
7. A preliminary objection that was raised by the Respondent Nos.11 to 15 herein was with regard to the maintainability of the instant petition itself. However, the said issue has now attained quietus after the pronouncement by the Hon'ble Apex Court in Madhya Pradesh High Court Advocates Bar Association and Anr. Vs. Union of India and Anr.1 that, "the National Green Tribunal U/s 14 &22 of the NGT Act does not oust the High Court Jurisdiction Under Article 226 &227 as the same is a part of the basic structure of the constitution." The same view has also been echoed forth in K T Rama Rao Vs. Anumula Revanth Reddy and Ors2 in that mere existence of alternative forum does not create a legal bar. In fact, that doesn't take away from the fact that the matter is pending before the Hon'ble National Green Tribunal, which is a specialised body competent and empowered to deal with such matters.
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8. Taking a holistic consideration of the facts and circumstances of the case and the fact that the instant petition is directed against only an interim order passed by the Hon'ble National Green Tribunal and the petition is still pending adjudication before it, this Court directs that, pending the proceedings before the Hon'ble NGT, the petitioner be permitted to carry out construction work within the permissible contours of law in line with the approvals and permissions granted to it by competent authorities. However, the Hon'ble Tribunal is free to pass final order uninfluenced by any of the observation made herein above.
9. The Writ Petition, thus, stands disposed of in the above terms. As a sequel to the above, pending interlocutory applications also disposed of in light of the above. Ordered accordingly."
13. Counter-affidavit dated 09.01.2023 has been filed by the Respondent No.11, Project Proponent, stating therein that the photographs from pages 48 to 55 (Annexure-2) to the Original Application, do not show construction at the site prior to grant of Environmental Clearance and reference has been made to the Ministry of Environment, Forests and Climate Change ('MoEF&CC' for short) Office Memorandum dated 29.03.2022.
14. It is further stated that during appraisal of the Project by the State Environment Impact Assessment Authority, Odisha, (hereinafter referred to as 'SEIAA'), a complaint letter dated 18.11.2022 had been received from the Applicants of the Original Application alleging that the Respondent had started construction without Environmental Clearance. In pursuance thereof, the SEIAA, Odisha, had directed the Odisha State Pollution Control Board to cause an inspection of the site to be made and submit its report. 15 Accordingly, the Odisha State Pollution Control Board vide its letter dated 17.12.2022 submitted the Site Inspection Report with the following observations as quoted in para 5 of the affidavit which are extracted herein under:-
"a. the eleven number of plots admeasuring 2.07 ha have been converted from NayanJori to Gharabari Kissam by the Competent Authority as per the Record of Rights. b. the land use and land cover map approved by the Bhubaneswar Development Authority shows that the project site is categorized under 'public and semi-public' zone.
c. there is no water reservoir or ponds existing over the land and two plots in the project area are used by the public as an approach road to Lakeshwar Temple situated 100 meters to the South-East of the plot; and d. Pillars postings have been made and no construction activity was found to have been carried out, except leveling of ground, boundary wall at the Southern part of the site and installation of three borewells within the demarcated plot area. In addition, three labour hutments were constructed outside the pillar posting project area."
15. It is further stated by the Project Proponent that thereafter the SEIAA, Odisha, in its 112th meeting held on 29.12.2022 recommended for grant of Environmental Clearance based on the undertaking submitted by the Respondent No.11, Project Proponent, and the Inspection Report of the State Pollution Control Board, copy of the Environmental Clearance dated 03.01.2023 has been filed as Annexure-R-2 to the counter-affidavit and the extract of the Report of State Pollution Control Board dated 17.12.2022 (already extracted hereinabove) has also been quoted in para 5 of the Environmental Clearance.
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16. It is also stated that under the Environment Impact Assessment (Amendment) Notification dated 22.12.2014 and the Office Memorandum dated 09.06.2015, Educational Institutions including Universities are exempted from the requirement of prior Environmental Clearance subject to sustainable environment. The Notification 22.12.2014 provides in Item 8 (a) that buildings having built-up area or covered area on all floors put together, being above 20,000 square meters but below 1,50,000 square meters would require Environmental Clearance but thereafter on a query being raised by the various educational institutions, a modification was issued by the MoEF&CC vide its Office Memorandum 09.06.2015 (page 141 of the paper book), with a clarification in the Gazette Notification No. S.O. 3252 (E) dated 22.12.2014, which provides exemption to buildings of educational institutions including universities from obtaining prior Environmental Clearance under the provisions of the EIA Notification, 2006, subject to sustainable environmental management. In case of medical universities/ institutes the component of hospitals will continue to require prior Environmental Clearance.
17. Reference has also been made to the Office Memorandum dated 19.05.2022 issued by the MoEF&CC which further clarifies the term 'educational institutions' to mean 'a school, seminary, college, university, professional academies, training institutes or other educational establishments, not necessarily a chartered institution and includes not only buildings, but also all grounds necessary for the accomplishment of the full scope of educational 17 institution, including those things essential to mental, moral and physical development', and it is stated that this notification carries a rider that they shall strictly implement the guidelines issued in the Office Memorandum dated 09.06.2015 to ensure sustainable environmental management.
18. The contention of the Respondent No.11 is that it is itself a University and is seeking to establish a training hospital for future generations of medical students and is, therefore, exempted from the requirement of prior Environmental Clearance under the MoEF&CC EIA Notification, 2006, except hospital section.
19. In the affidavit, it is also stated that the Project Proponent has obtained Consent to Establish on 03.01.2023 under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974, and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 respectively from the State Pollution Control Board, Odisha, for establishment of its teaching hospital project, copy of the Consent to Establish has been filed as Annexure-R/5 to the counter- affidavit.
20. It is also stated that the land in dispute which is alleged to be 'Nayanjori' has also been converted under the Odisha Government Land Settlement Act, 1962, and the Odisha Government Land Settlement Rules, 1983, as 'Gharabari'. It is further stated that the Project Proponent obtained the certificate of the Record of Rights on 24.02.2022 which clearly reflects that 2.07 hectare of land previously stated to be 'Nayanjori' has been converted to 18 'Gharabari Kissam' i.e., 'Household Use' and the same also finds mention in the Inspection Report of the Odisha State Pollution Control Board dated 17.12.2022. It is also stated that the Project Proponent has also obtained 'No Objection Certificate' on 01.12.2022 from the Health and Family Welfare Department, Government of Odisha, to the Siksha O Anusandhan for setting-up of a Medical College and Hospital at Phulnakhara, Odisha.
21. The State Pollution Control Board, Odisha, Respondent No.7, has filed affidavit dated 18.01.2023 bringing on record an Inspection Report of an inspection carried out on 27.12.2022 which reads as under:-
Sl. No. Subject Information
1. Project name and Institute of Medical Science &
address SUM Hospital (Campus-II)
At: Nakhara, Po: Phulnakhara,
Bhubaneswar
Dist: Khordha
2. Date of inspection 27.12.2022
3. Name of the inspecting Dr. S. Giri, Regional Officer officers
4. Industry personnel Sri SasankaSekar Mishra, Joint present during the Registrar inspection
5. Proprietors name and Dr. Prof. Manoranjan Nayak address President, Siksha O Anusandhan At: Plot No. 224, Dharam Vihar, Po: Jagamara, Bhubaneswar, Dist: Khordha
6. Consent Status The unit applied for grant of Consent to Establish for the hospital with CTE fee of Rs.2000.00 (vide receipt No.838862736 dt. 16.12.2022).
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7. Cost of the Project Rs.975.00 Crores
8. Product & production Construction of Multistoried capacity (proposed) Bedded Hospital Building with total built up area of 89,712.23 Sq. mt. along with installation of 2 nos. of DG sets of capacities (i.e. 2X630 KVA) for power backup.
9. Category of Industry Red category
10. Details of the project & Construction of Multistoried Permission from Other Bedded Hospital Building with Departments total built up area of 89,712.23 Sq. mt. along with installation of 2 nos. of DG sets of capacities (i.e. 2X630 KVA) for power backup.
11. Plot No. and Khata No., At Mouza Nakhara;
Mouza, Tahasil, Police On Plot No. 416, 297, 417, 419,
Station etc. 296, 298, 418, 299, 420, 287 and
415/4195 of Khata No.26/1
(GAD)
Tahasil: Bhubaneswar, PS:
Balianta No. 2,
Dist: Khordha, Odisha
Plot Area: 5.115 Acres
Total built up area of 89, 712.23
Sq. mt.
Green belt area: 3119.50 Sq. mt.
Maximum height of the building is
36.00 meters.
12. Water pollution and The total freshwater requirement
control measures of the unit will be 490 KLD
proposed to be adopted (Drinking 335 KLD and 155 KLD
Hot water) and be drawn through
bore well (Source: Ground water).
Approximately 626 KLD of
wastewater will be generated.
The unit has proposed to install of
20
one number of Sewage Treatment
Plant (STP) of 600 KLD capacity
and one number of Effluent
Treatment Plant (ETP) of 100 KLD
capacity, inside the premises for
the treatment of waste water
generated from the hospital
complex.
Total wastewater to be generated
will be 501 KLD (244 KLD will be
reused for flushing, 90 KLD for
irrigation/green belt development
and 160 KLD for dust suppression
and washing purpose. The unit
has proposed for zero disposal.
During rainy season 90 KLD
water will be discharged to
outside drain.
The unit has proposed to provide
21 nos. of rain water harvesting
pits.
13. Air pollution and control The unit has proposed to provide measures adopted 2 number of DG set of capacities (i.e. 1X630 KVA) for power backup. Stack adequate height along with acoustic enclosures will be provided.
14. Solid waste generation It is estimated that about 0.800 and its disposal MT of solid waste will be generated per day. The solid waste will be the bio-degradable (0.352 MT.day) and non-
degradable wastes (0.528 MT/day). The bio-degradable waste will be composted while non-degradable wastes will be separated and given to authorized 21 recyclers. The STP & ETP sludge generated will be used as manure in the gardening inside the premises.
15. Bio-medical waste It is estimated that about 1.800 generation and its MT of both general waste (1.530 disposal MT/day) and bio-medical wastes (0.270 MT/Day) will be generated.
The same will be disposed as per the provisions under Bio-medical Waste Management Rules, 2016.
16. Plantation The unit proposed to provide 20.71% of plot area for plantation and greenery i.e. 3119.50 Sq.m in which there will be avenue plantation and plantation along the boundary and lawn development inside the premises.
17. Recommendation & The site is suitable for Special Conditions to be development of the project. given No construction activities has been undertaken and only land leveling has been done. It was observed that 3 nos. of borewells has been provided.
Consent to Establish may be considered for the Construction of Multistoried Bedded Hospital Building with total built up area of 89.712.23 Sq.mt. along with installation of 2 nos. of DG sets of capacities (i.e. 2X630 KVA) for power backup with special conditions both under Water & Air (PCP) Act."
22
22. Copy of Consent to Establish dated 03.01.2023 issued by the State Pollution Control Board to the Project Proponent, Respondent No.11, has also been filed as Annexure-R7/2 along with the affidavit of the State Board.
23. The SEIAA, Odisha, Respondent No.6, has filed affidavit dated 19.01.2023, stating therein that the Project Proponent had submitted a project proposal for grant of Environmental Clearance vide online application dated 22.08.2022 for construction of IMS & SUM Hospital (Campus-2) building (2B+G+9) having total built-up area 89,712.23 sqm., Plot area 5.115 acres over Plot Nos. 416, 297, 417, 419, 296, 298, 418, 299, 420, 287, 415/4195 under Khata No.626/1, in Mouza-Phulankhara, Bhubaneswar, along with all the requisite documents. The State Level Expert Appraisal Committee (SEAC) apprised the proposal and recommended for grant of Environmental Clearance in its meeting held on 02.11.2022 for a period of 10 years with certain conditions.
24. It is also stated that a complaint was received by the SEIAA, Odisha, on 18.11.2022 through e-mail against the project stating that the land in question is Kissam Nayanjori and the encroachment of road in the adjoining site, construction activity has already been started without Environmental Clearance. The matter was considered by the SEIAA in its meeting held on 06.12.2022 and after detailed deliberation, report from the State Pollution Control Board, Odisha, was sought and the State Pollution Control Board, Odisha, submitted its Site Inspection 23 Report on 17.12.2022, extract of which is already quoted hereinabove.
25. It is further stated that considering the Report of the State Pollution Control Board, Odisha, dated 17.12.2022 and the documents on record, the SEIAA, Odisha, granted Environmental Clearance to the Project in question on 03.01.2023.
26. Affidavit dated 19.04.2021 has been filed by the Deputy Director of Estate, G.A. & P.G. Department, Government of Odisha, stating therein that the land in question was allotted in favour of the Respondent No.11 vide order dated 17.02.2022 for establishment of Institute of Medical Science & SUM Hospital (Campus-2) subject to deposit of land premium amounting to Rs. 15,34,50,000/- (Rupees Fifteen Crores Thirty Four Lakhs Fifty Thousand only) i.e., Rs. 3,00,00,000/- (Rupees Three Crore only) per acre. The Land Schedule quoted in para 7 of the affidavit is extracted herein below:-
Mouza - Nakhara P.S. Balianta
Khata No. Plot No. Area Kissam
626/1 (GAD) 416 Ac. 0.150 dec. Nayanjori
297 Ac. 0.070 dec.
417 Ac. 0.050 dec.
419 Ac. 0.080 dec.
296 Ac. 0.060 dec.
298 Ac. 0.020 dec.
418 Ac. 0.170 dec.
299 Ac. 0.080 dec.
420 Ac. 0.060 dec.
287 Ac. 0.240 dec.
415(p) Ac. 4.135 dec.
24
27. In the affidavit, it is stated that after deposit of the land premium a registered lease deed was executed on 02.03.2022; the physical possession of the land was delivered to the Project Proponent on 04.03.2022; the land was leased out in favour of the Project Proponent under the provisions of Odisha Government Land Settlement (Second Amendment) Rules, 2020; the Record of Rights has been corrected in the name of the Project Proponent by the Tahasildar, Bhubaneswar, in 'Patadar Status'; the Tahasildar, Bhubaneswar, has also corrected the classification of the allotted land as 'Gharabari'. It is stated that Clause 8 of the Odisha Government Land Settlement (Second Amendment) Rules, 2020, envisages correction in the Record of Rights by the Tahasildar after execution of lease deed.
28. So far as the allegation that the land in question is used for facilitating the flow of water into the Prachi River, it is categorically averred that the land in question was never used for passage of water. It is also stated that the land in question was 'Nayanjori' which is a water body through which storm water is stored and discharged and is a road side land. The said land was lying vacant and unused for a considerable period of time and has been allotted to the Respondent No.11 after the area was surrendered by the National Highway Authority of India. It is stated that as per the Field Enquiry Report dated 06.01.2023, area measuring Ac. 3.105 decimal is still available between the National Highway and the area allotted in favour of the Respondent No.11. The area allotted in 25 favour of the Respondent No.11 does not have any presence of water and the Field Enquiry Report also indicates that no river named 'Prachi' exists in the vicinity. Details of the plots allotted to the Project Proponent, Respondent No.11 and its corresponding classification of the land has been given in para 12 of the affidavit which is extracted herein below:-
Mouza - Nakhara P.S. Balaianta
Khata No. Plot No. Area Kissam
648 (Patadar) 416 Ac. 0.150 dec. Gharabari
297 Ac. 0.070 dec.
417 Ac. 0.050 dec.
419 Ac. 0.080 dec.
296 Ac. 0.060 dec.
298 Ac. 0.020 dec.
418 Ac. 0.170 dec.
299 Ac. 0.080 dec.
420 Ac. 0.260 dec.
287 Ac. 0.240 dec.
415(p) Ac. 4.135 dec.
29. It is stated that the land allotted to the Respondent No.11 has been classified as 'Gharabari' i.e., 'Homestead'. The Field Enquiry Report further indicates that there is an existing road pertaining to Plot No.421, Kissam-Rasta (Kacha Rasta), area Ac. 0.260 decimal which connects from NH-16 to Lakheswar Temple and is situated adjacent to the south side of the land of Respondent No.11 University. It is reiterated that the State Pollution Control Board has granted permission vide their letter No.6854 dated 03.01.2023 for construction of IMS and SUM Hospital Campus-2 over the land in question.
26
30. The Commissioner, Bhubaneswar Municipal Corporation, Respondent No.4, has filed affidavit dated 19.04.2023, reiterating the facts already stated hereinabove, namely, the description of the plots in question in the Field Enquiry Report etc. and it is stated that construction has started on the land in question which is a 'Gharabari' as per Record of Rights.
31. The Bhubaneswar Development Authority, Respondent No.3, has filed affidavit dated 11.04.2023 only stating that the Bhubaneswar Development Authority has issued instructions to the Respondent No.11 in pursuance of the directions of the Tribunal not to proceed with construction.
32. The Respondent No.11, Project Proponent, has filed further affidavit dated 19.05.2023, wherein it is stated that the Building Plan submitted by the Respondent No.11 has been approved by the Bhubaneswar Development Authority on 01.05.2023.
33. The Bhubaneswar Municipal Corporation, Respondent No.4, has filed supplementary affidavit dated 20.07.2023, reiterating that the Building Plan of the Respondent No.11, Project Proponent, has been approved.
34. The Bhubaneswar Development Authority, Respondent No.3, has filed additional affidavit also dated 20.07.2023 stating therein that the Bhubaneswar Development Authority has accorded permission for construction over the land in question, considering the directions given by the Hon'ble High Court. 27
35. The Applicants have filed rejoinder affidavit dated 20.07.2023, alleging that the Bhubaneswar Development Authority had not approved the Building Plan of the Hospital in question until 25.04.2023. It is stated that a civil suit has been filed by the adjoining plot owner in the court of Civil Senior Judge, Cuttack, on 22.11.2022 to obtain injunction order against the said construction by the Respondent No.11. It is also alleged that the photographs on record show that the construction had commenced much prior to the grant of Environmental Clearance by the SEIAA, Odisha, and, therefore, the Project Proponent, is liable for prosecution as per the Office Memorandum dated 12.12.2012 and Office Memorandum dated 07.07.2021 (SOP for handling violation projects) and Section 15 of the Environment (Protection) Act, 1986.
36. Allegation relating to land in question being connected to Prachi river have been reiterated and it is stated that the Archeological Survey Report of Prachi Valley prepared by the Orissa State Archaeology, Bhubaneswar, in 1975 recognized the presence of Prachi river as well as presence of Lakheswar Temple.
37. The Applicants have also filed additional affidavit dated 20.04.2023 bringing on record the Archaeological Survey Report of 1974-75 of the Prachi Valley, prepared by the Orissa State Archaeology Department, Bhubaneswar, in 1975, and it is stated that the ongoing construction had already commenced on the site in question even before grant of Environmental Clearance using JCB machines.
28
38. The submission of Mr. Sankar Prasad Pani, learned Counsel for the Applicants, is that the Respondent No.11, Project Proponent, had started construction on the site in question even prior to grant of Environmental Clearance. Photographs have been filed along with the Original Application to support the averments made. It is further alleged that the land in question is 'Nayanjori' i.e., water body which connects to the Prachi River and, therefore, construction on such land is illegal and cannot be permitted in view of the judgment of the Hon'ble Supreme Court in (2001) 6 SCC 496 (Hinch Lal Tiwari Vs. Kamala Devi & Ors.).
39. It is further stated that the Respondent No.11 is in violation of Environmental Clearance conditions and, therefore, its Officers and Director should be punished for violating the Environmental Conditions.
40. So far as the allegation that the land is 'Nayanjori' is concerned, we find that the documents on record show that as early as 24.02.2022 the status of the land has been changed to 'Gharabari' by the State Government. The Applicants have filed document as Annexure-1 which is stated to be copy of the land record dated 24.02.2022 showing the plots in question to be 'Nayanjori'. However, the Respondent No.11 University has filed the land documents at page no. 182-86 of the paper book, which is the English translated copy of the Land Records/Record of Rights/Khatiyan showing the land in dispute to be 'Gharabari'. The Khatyian/Record of Rights of the land in dispute reads as under:- 29
"KHATIYAN (Record of Rights) Appendix-A (Parisista) Mouza-Nakhara Tahasil: Bhubaneswar Form No.-99 Police Station-Balianta Tahasil No:286 Chapter-402 Police Station No.2 District-Khordha (Parichheda) SL. NO. Amount 1 Khatiyan No. 648 2 Landlords Name and Government of Odisha, Khewat Khewat Or Khatiyan No.1 Serial No. 3 Tenant Name, Fathers Siksha 'O' Anusandhan, Name, Caste & Place of Represented through its Residence President Manojranjan Nayak, S/o Daitari Nayak, Caste:
Khandayat, Place: Plot No.224, Dharmavihar, P.S/P.O. Khandagiri, Bhubaneswar, Dist.
Khordha
4 Status (Satwa) PATTADAR (Recorded Owner)
5 Water Tax (Jal Kara)
Rent (Khajana) 5115.00
Tax (Deya) Cess 3835.00
Gradually Increasing rent, if any 0.00
Total 8950.00
6 Description of cumulative
tax
7. Special Remarks, if any As per order, Mutation case
No.40721/2022, Plot No.416
A0.150 D, Plot No.297 A0.070 D,
Plot No.417 A0.050 D, Plot
No.419 A0.80 D, Plot No.296
A.0.060D, Plot No.298 A0.020 D,
Plot No.418 A0.170 D, Plot
No.299 A0.080 D, Plot No.420
A0.060 D, Plot No.287 A0.240 D,
Plot No.415 A 4.135D, deducted
from Govt. of Odisha, G.A. Dept.
Khata No.626/1
BLANK SPACE FOR STAMPING
30
Last date of Publication:
Date fixed for rent:
Khatiyan Sl. No.648 Mouza-Nakhara District :
Khordha
Chaka Details Details Detailed Area Classificati- Remarks
No. of the of the classification on of Land
plots plots of Land AC Dec Hec not under
under not (Kissam) & the Chaka
Chaka under Boundary
Chaka
8 9 10 11 1 2 13 14 15
297 0 0700 0.0283 Gharabari
417 0 0500 0.0202 Gharabari
419 0 0800 0.0324 Gharabari
296 0 0600 0.0243 Gharabari
298 0 0200 0.0081 Gharabari
418 0 1700 0.0688 Gharabari
299 0 0800 0.0324 Gharabari
420 0 0600 0.0243 Gharabari
287 0 2400 0.0971 Gharabari
415/ 4 1350 1.6734 Gharabari
4195
416 0 1500 0.0607 Gharabari
11 5 1150 2.0700
plots
41. The Respondent No.11 has also filed the same document filed by the Applicants as Annexure-1 to the Original Application to show that the land being mentioned as 'Kissam-Nayanjori' and it is pointed out by Mr. Sanjay Upadhyay, learned Counsel for the Respondent No.11 that the signatures of the Amin and Revenue Inspector, as also of the Assistant Director (Survey and Enforcement), G.A. & P.G. Department, are of 24.02.2022 and this conversion has been carried out on the same date from 'Nayanjori' to 'Gharabari'.
42. Mr. Sankar Prasad Pani, learned Counsel termed the documents at page nos. 182-84 to be forged and fabricated 31 documents. In our opinion, the question as to whether the land in question was actually declared to be 'Gharabari' on 24.02.2022 or not is a matter which is outside the pale of jurisdiction of this Tribunal. Further, the State Respondents have also taken the same stand that the land in question was converted from 'Nayanjori' to 'Gharabari' on 24.02.2022 and, therefore, in the circumstances, we have no doubt regarding the genuineness of this document.
43. Mr. Sankar Prasad Pani, however, fairly submitted that the conversion of the land in question from 'Nayanjori' to 'Gharabari' cannot be examined by this Tribunal, being beyond its jurisdiction, and it can be examined only in a challenge given to the said document before the appropriate Revenue Authorities/Revenue Courts.
44. The affidavit of the Deputy Director of Estate, G.A. & P.G. Department, Odisha, dated 19.04.2023, further states that the land schedule was allotted in favour of the Respondent No.11 vide order dated 17.02.2022 under a registered lease deed executed on 02.03.2022 and, therefore, the registered lease deed of the land would be valid, since the character and nature of the land had already been converted from 'Nayajori' to 'Gharabari' on 24.02.2022.
45. The affidavit of the Deputy Director of Estates further states that the land in question was earlier a water body through which storm water was stored and discharged and it is a road side land 32 which was lying vacant for a very long time and the said land was never used for facilitating passage of water into the Prachi river.
46. Mr. Sankar Prasad Pani, learned Counsel further submitted that the photographs filed by the Applicants showed a water body in the shape of a river, however, on the contrary, it is the clear stand of the State Respondents that the land is adjacent to the road side which was handed over by the National Highway Authority of India and between the road and the land allotted to the Respondent No.11 there is an area measuring Ac. 3.105 decimal still existing as per the Field Enquiry Report dated 06.01.2023.
47. Be that as it may, this Tribunal, being a Court of limited jurisdiction, can only enquire the issues regarding environmental violations and cannot examine the question relating to validity of conversion in the Record of Rights or validity of the lease granted in favour of the Respondent No.11 after its conversion from 'Nayanjori' to 'Gharabari'.
48. It was next vehemently submitted by Mr. Sankar Prasad Pani, learned Counsel for the Applicants that the construction had been commenced by the Respondent No.11 even prior to the grant of Environmental Clearance. The Environmental Clearance was admittedly granted on 03.01.2023 which is the case of the Applicants as well as of the Respondents and the copy of the Environmental Clearance is also on record.
49. Mr. Sanjay Upadhyay, learned Counsel for the Respondent No.11 refers to the MoEF&CC Office Memorandum dated 33 29.03.2022 (page no.115 of the paper book) and submits that the Office Memorandum dated 19.08.2010 has been subsequently clarified by the MoEF&CC and it is provided that while securing the land, no activity relating to any project covered under EIA Notification 2006 including civil construction can be undertaken at the site without prior Environmental Clearance except fencing of the site to protect it from getting encroached and construction of temporary shed(s) for the guard(s). This Office Memorandum further provides the following activities which can be undertaken by the Project Proponent for securing the land viz.:-
i. Fencing of the project site by boundary wall using civil construction, barbed wire or precast/prefabricated components.
ii. Construction of temporary sheds using pre-
fabricated/modular structure, for site office/guards and storing material and machinery.
iii. Provision of temporary electricity and water supply for site office/guards only.
50. Mr. Sankar Prasad Pani, learned Counsel, on the other hand, referring to the same Office Memorandum dated 29.03.2022 submitted that the said notification provided a further condition that 'the land should be in the legal possession of the Project Proponent and all statutory approvals in respect of the project site should have been obtained'. It is further submitted that in the present case Consent to Establish was granted only on 03.01.2023 and the Environmental Clearance was also granted on 03.01.2023, 34 therefore, it cannot be said that statutory compliances had been obtained by the Project Proponent, Respondent No.11.
51. So far as legal possession of the land in question is concerned, we may note that the land had been converted from 'Nayanjori' to 'Gharabari' on 24.02.2022 and the lease deed was executed in favour of the Respondent No.11, Project Proponent, on 02.03.2022, therefore, there is no doubt as to the legal possession being granted in favour of the Respondent No.11 in respect of the land in question. So far as statutory provisions are concerned, the notification itself contemplated construction of a limited nature prior to grant of Environmental Clearance.
52. The photographs on record only show construction material on the land in question as also some areas being dug-up. Photographs also show a partial boundary wall under construction. Photographs filed by the Applicants from pages 63-64 of the paper book, do not show any construction but only show scattered machinery on the site as on 15.10.2022. Photographs filed at page nos. 48 to 55 of the paper book, also show scattered constructions and certain poles and pillars and certain electricity poles and construction material on the site including ditches but no permanent construction of the Hospital in question is visible. The construction shown in photographs at page no.49 of the paper book, according to Mr. Sanjay Upadhayay, learned Counsel for Respondent No.11, are corrugated sheds/temporary sheds made for storage of construction 35 material and residence of workers which is permissible under the MoEF&CC Notification of 29.03.2022.
53. The SEIAA, Odisha, has also filed photograph of the site in question as Annexure-V (page 273) to the affidavit, which appears to be satellite picture of the site, but it does not show any construction on the same. Thereafter, photograph filed at page no.
275 of the paper book, also do not show any construction other than construction material lying around on the site and a partially constructed boundary wall stated to be on the south of the project area and storage of construction material.
54. The EIA Notification, 2006, in our opinion, clearly provides fencing of the project site by boundary wall using civil constructions, barbed wire or precast/prefabricated components and construction of temporary sheds using prefabricated/modular structure for site office/guards and stored material and machinery, such activities are permitted for purposes of levelling and preparation of the land and to secure the same for further construction activity following grant of Environmental Clearance.
55. In the circumstances, the contention of the Applicants that construction of the Hospital in question has been started by the Respondent No.11, Project Proponent, prior to grant of Environmental Clearance in violation of the environmental norms is without merit and is rejected.36
56. Mr. Sankar Prasad Pani, learned Counsel for the Applicants further submitted that the Environmental Clearance condition is not absolute and, therefore, the Project Proponent has violated the Environmental Conditions and the project in question cannot be allowed to go on.
57. The Applicants have filed the present Original Application seeking the following reliefs:-
"A. Direct the State Respondents to remove the construction from the Nayanjori Land and restore the land to government control to be used for the purpose of passage of storm water B. Initiate prosecution against the private respondent as per MoEF&CC order dated 12/12/2012 and Impose Exemplary environment compensation and penalty for construction without environment clearance. C. An order as deem fit in the interest of justice."
58. The Applicants have not challenged the Environmental Clearance and in any case the same cannot be challenged in an Original Application filed under Section 14 of the National Green Tribunal Act, 2010, and the Tribunal, therefore, cannot go into questions regarding validity of the Environmental Clearance or violations of its conditions.
59. Mr. Sanjay Upadhaya, learned Counsel for Respondent No.11 further submitted that the Applicants were fully aware of the conversion of land from 'Nayanjuri' to 'Gharabari', since the proceedings in this regard had been commenced in 2021 itself. 37 Reference has been made to the document filed as Annexure-9 (page 84) to the Original Application, which is a public notice of the final list of allottees drawn up by the Land Allotment Committee wherein the land schedule has been filed and the plots to be allowed in favour of the Respondent No.11 have been clearly outlined in Item 7(b) showing the Khata number, Plot numbers and the purpose of allotment as being establishment of Institute of Medical Science and SUM Hospital (Campus-2). Learned Counsel submits that this notice invited objections, if any, before the G.A. & P.G. Department, within 15 days from the date of publication of the notice but no objections were filed by the Applicants or at least the Applicants have not been able to show from any of the averments in the Original Application that they had ever filed any objection against the public notice and, therefore, it is not open for the Applicants to raise any objections with regard to the Project in question.
60. We have gone through the public notice dated 04.09.2021 and the schedule appended thereto and we find that Applicants have not stated that they have filed any objections in pursuance to the public notice dated 04.09.2021. We also find that a final list of allottees drawn up by the Land Allotment Committee was submitted on 10.01.2022 (document filed at page no.173 to 181 of the paper book), showing the conversion of the plots in question in favour of the Respondent No.11 occurring at Item No.18 of the list appended to the notice dated 10.01.2022 but there is nothing on record to 38 show that the Applicants had submitted any objection thereto even though objections were invited in the notice dated 10.01.2022.
61. We also find that prior to grant of Environmental Clearance, the SEIAA, Odisha, had acted on the complaint of the Applicants dated 18.11.2022 and called for a report from the State Pollution Control Board and the State Board had submitted its Inspection Report on 16.12.2022, already extracted hereinabove, which clearly mentions that no construction activity has been undertaken and only land levelling has been done and it is only thereafter that the Environmental Clearance was granted by the SEIAA, Odisha, on 03.01.2023.
62. Therefore, on a conspectus of facts and documents on record, we find no merit in the present Original Application and the same is accordingly dismissed. Case law relied on by the Applicants have no application to the facts of the present case.
63. I.As. if any, stand dispose of accordingly.
64. There shall be no order as to costs.
....................................... B. AMIT STHALEKAR, JM ................................................ DR. ARUN KUMAR VERMA, EM Kolkata, July 27th, 2023, Original Application No.157/2022/EZ (I.A. No.07/2023/EZ) AK 39