Punjab-Haryana High Court
Diljit Singh And Others vs Union Of India And Others on 22 November, 2010
Bench: Jasbir Singh, Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.4186 of 2009
Date of decision: 22 .11.2010
Diljit Singh and others
.....Petitioners
versus
Union of India and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Augustine George Masih
Present: Mr.Ashok Aggarwal, Senior Advocate with
Mr.Mukul Aggarwal, Advocate for the petitioners
Mr.Kamal Sehgal, Addl.A.G. Haryana
Ms.Ranjana Shahi, Sr.Panel Counsel, for UOI
Mr.Sidharth Batra, Advocate for respondent-HUDA
Jasbir Singh, J.
This order will dispose of 11 writ petitions bearing CWP Nos.4186, 4211, 4224, 4499, 4625, 8157, 8198, 8543, 9422, 9726, 13257 of 2009 and also CWP No. 8204 of 2009, involving similar questions of law and facts. For the purpose of dictating order, facts are being mentioned from CWP Nos.4186 and 8204 of 2009.
By filing these writ petitions, the petitioners have laid challenge to a notification issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 3.10.2006 (P5), proposing to acquire 507.63 Civil Writ Petition No.4186 of 2009 2 acres of land for a public purpose, namely, 'for development and utilization of land as residential and commercial area for sector 13, Jagadhri'. After acquisition, the development was to be done by the Haryana Urban Development Authority (HUDA)- respondent No.4. Further challenge is to a notification dated 1.10.2007 (P20), issued under Section 6 of the Act, declaring an intention of the government, to acquire the above said area, except a very small piece of land, which was left out of acquisition after hearing objections of the land owners under Section 5-A of the Act.
In CWP No.8204 of 2009, the petitioners have raised challenge against a notification issued under Section 4 of the Act on 21.7.2006, proposing to acquire a vast track of land for a public purpose, namely, 'development of industrial model township Faridabad'. Further challenge has been made to a notification under Section 6 of the Act on 7.8.2007.
It is necessary to mention here that in this case, award was pronounced on 28.7.2008.
Mr.Ashok Aggarwal, Senior Advocate, who has put in appearance on behalf of the petitioners, has raised the following two issues in this case, to assail the acquisition proceedings:-
(i) Government of Haryana (respondent No.2) failed to apply its independent mind to the recommendation made by the Land Acquisition Collector Urban Estates (respondent No.3), recommending release from acquisition of the land owned by the petitioners measuring about 42 acres.
(ii) Before proposing to acquire the land in question, prior environmental clearance (EC) has not been obtained by the respondents from the State Level Environment Civil Writ Petition No.4186 of 2009 3 Impact Assessment Authority (in short, assessment authority), constituted by the Central Government under sub-section 3 of the Environment (Protection) Act, 1986.
So far as CWP No.8204 of 2009 is concerned, besides raising objection shown at serial No.(ii) above, it is contended that the hearing given to the land owners by the Land Acquisition Collector when deciding their objections under Section 5-A of the Act was not proper.
Counsel for the parties heard.
Facts of CWP No.4186 of 2009 About 32 acres of land of the petitioners is under acquisition. It is case of the petitioners that with a dint of hard labour and on spending huge amount, they have developed an orchard of many fruit bearing trees like Mango, Lichi, Nashpati etc. in the above said land. The number of fruit bearing trees is about 2300. It was further contended that they have also raised construction/ farm house in the land under acquisition. It is contention of Mr.Aggarwal that despite favourable recommendation made, to release their land from acquisition, by the Land Acquisition Collector, without any application of mind, it was made part of the declaration issued under Section 6 of the Act. To stress this point, reliance has been placed upon extract of the report of the Land Acquisition Collector, which, qua the petitioner No.1 reads thus:-
"At the spot there exists a Farm House in Khasra No.1063 and in the remaining area, there exists a well developed orchard of a very good quality. Recommendation is being made for releasing the same land/ orchard and Farm House from the acquisition, as in case they are acquired, a lot of compensation has to be paid by the HUDA department." Civil Writ Petition No.4186 of 2009 4
Besides as above, regarding Rajinder Pal Singh etc., the Collector has made mention regarding existence of Smadhi in the land under acquisition. Rest of the recommendation was the same. It is necessary to mention here that most of the land owned by the petitioners falls in 75 meters wide road and green belt to be left on both sides of the same. By making reference to the site plan Annexure P32, Mr.Aggarwal contended that by slight shifting of alignment of the road towards its right side, orchard of the petitioners can be saved. He further raised an objection that to controvert averments by the petitioners regarding non-suitability of their land for acquisition, an affidavit, only of the Land Acquisition Collector has been filed, who was not associated in the process when decision was taken to acquire land at the State level. To say so, he has placed reliance upon a judgment of this Court in CWP No.5878 of 2003 titled Amita Banta and another v. State of Haryana and others, decided on 8.12.2009. He prayed that on this score alone, notifications under challenge cannot be sustained.
To rebut his above said contention, Mr.Sehgal argued that recommendation made by the Collector was not binding because the same was made on the basis of wrong facts. As per development plan for the area, alignment of the road and green belt has been fixed and it is not possible to change the same as prayed by the petitioners. By making reference to the site plan Annexure P32, he has stated that if alignment is shifted towards its right side, as prayed by the petitioners, it will eat away orchards being maintained by other land owners. If released, the land owned by the petitioners, it will bifurcate rest of the area under acquisition. He further argued that to verify the feasibility of release of land as per recommendation made, a Joint Site Inspection Committee was constituted, which visited the site on 19.8.2007 and recommended acquisition of the Civil Writ Petition No.4186 of 2009 5 land. He stated that there was proper application of mind in ordering acquisition of land of the petitioners.
After hearing counsel for the parties, we are of the opinion that no relief can be granted to the petitioners in view of facts on record.
It is true that the Land Acquisition Collector, in its report made a recommendation that on account of existence of an orchard in the land owned by the petitioners, it be kept out of acquisition because if acquired, it would involve payment of huge amount of compensation by the HUDA to the petitioners. After looking at the report made by the Joint Site Inspection Committee, we are of the opinion that recommendation made by the Land Acquisition Collector was not justified. Merely because, trees were standing in the land, in dispute, and payment of huge amount of compensation would be involved, is no ground to exempt the land, if otherwise, it fits in the overall planning of the area to be developed. The Collector has nowhere stated that as to how it is possible to shift the alignment of road and the green belt to save this land.
Be that as it may, when this objection was raised at the time of hearing, the Court on 9.3.2010, passed the following order:-
"Learned counsel for the petitioner(s) by citing a Division Bench judgment of this Court rendered in CWP No.5878 of 2003 (O&M), decided on 8.12.2009 (Amita Banta and another v. State of Haryana and others) has argued that the affidavit considering the objections about existence of public purpose and fitness of the land for acquisition by a person associated with the decision making at the State level is required to be filed.Civil Writ Petition No.4186 of 2009 6
Admittedly, there is nothing on record to show that any such affidavit has been filed.
Learned State counsel seeks and granted two weeks time to file the appropriate affidavit.
List again on 29.3.2010.
A photocopy of this order be placed on the files of connected cases."
In response thereto, an affidavit has been filed by the Principal Secretary to Government of Haryana, Urban Estates Department at Chandigarh, wherein it is stated as under:-
"That after the receipt of the report of the Land Acquisition Collector, Panchkula the Joint Site Inspection Committee visited the site on 29.8.2007 and observed that:-
"DTP pointed out that major parts of these orchards fall in the alignment of the proposed peripheral road (75 m wide) and its 50 meters wide green belts. Acquisition of these orchards can not be avoided even if alignment of road is shifted towards Eastern or Western wide as there are orchards existing on either sides of the proposed peripheral road. The committee inspected the area. It observed that there is no possibility of shifting the alignment of the proposed peripheral road considering existing of orchards of other land owners on either sides of the road. Considering the constraints the Committee suggested that the entire land under the orchards may be acquired. Planning of the area may be done so precisely that least number of trees are felled for Civil Writ Petition No.4186 of 2009 7 construction of the peripheral road and remaining area under orchards may be retained and maintained as such by HUDA to avoid any environmental degradation. It is no loss if HUDA sheds a few lacs of extra bucks in lieu of compensation to protect the environment and landscape of the area. Regarding farmhouse, the Committee observed that, it falls right in the alignment of the proposed peripheral road. Hence, there is no justification of exempting it from declaration u/s 6 of Land Acquisition Act, 1894." The complete report of the J.S.I.C. is annexed herewith as Annexure R1.
That the Government while considering the report of Land Acquisition Collector, Panchkula accepted the recommendation made by the Joint Site Inspection Committee due to the reason that the petitioners' land falls in the proposed sector master road."
It is coming out from the records that after receipt of recommendations made by the Land Acquisition Collector, Joint Site Inspection Committee was constituted, consisting of the following officers:-
1. Smt.Neelam P. Kansni, IAS, Administrator, HUDA Panchkula
2. Sh.Dilbag Singh Sihag, Senior Town Planner, Panchkula
3. Sh.P.K. Garg, Superintending Engineer, HUDA, Karnal
4. Sh.Narinder Singh, Estate Officer-cum-SDO© Jagadhri
5. Sh.R.K.Singh, District Town Planner, Yamuna Nagar.Civil Writ Petition No.4186 of 2009 8
6. Sh.Devender Kaushik, Land Acquisition Officer, Panchkula."
The Committee took note of the recommendations made by the Land Acquisition Collector to release land of the petitioners. The District Town Planner brought it to the notice of the Committee that major part of the orchard owned by the petitioners falls in the alignment of a proposed peripheral road (75 meters wide) and its 50 meters wide green belt. It was further stated that acquisition of these orchards cannot be avoided even if alignment of road is shifted towards eastern or western side as there are also orchards in existence. The Committee then inspected the site and it was observed that there was no possibility of shifting of alignment of the proposed road. It was recommended that "planning of the area may be done so precisely that least number of trees are felled for construction of the peripheral road and remaining area under orchards may be retained and maintained as such by HUDA to avoid any environmental degradation. It is no loss if HUDA sheds a few lacs of extra bucks in lieu of compensation to protect the environment and landscape of the area. Regarding the farmhouse, the committee observed that, it falls right in the alignment of the proposed peripheral road. Hence, there is no justification of exempting it from declaration u/s 6 of Land Acquisition Act, 1894."
Report of the Committee is also annexed with the affidavit filed by Mr.D.S.Dhesi. We have gone through the same and are satisfied that there was proper application of mind to the recommendations made by the Land Acquisition Collector for release of land, as is coming out from the affidavit filed by Mr.D.S.Dhesi, Principal Secretary to Government of Haryana, Urban Estates Department. Recommendation made by the Joint Civil Writ Petition No.4186 of 2009 9 Site Inspection Committee was accepted by the Government and thereafter notification under Section 6 of the Act was issued.
Reliance of Mr.Aggarwal on the ratio of judgment in Amita Banta's case (supra), is of no help to the petitioners. In that case, admittedly, affidavit was filed only by the Land Acquisition Collector. By taking note of the same, it was observed by a Division Bench of this Court that because no affidavit by any of the functionaries, who may have dealt with the decision making at the State level has been brought on record, to show application of mind to the objections filed under Section 5-A of the Act, before issuing notification under Section 6 of the Act, the Land Acquisition Collector's affidavit would not show application of mind at the level of the State government and accordingly, it was ignored.
The situation is altogether different in the present case. In response to the order dated 9.3.2010, passed by this Court, affidavit dated 30.5.2010 was filed by Mr.D.S. Dhesi, Principal Secretary to Government of Haryana, Urban Estates Department, stating the circumstances and the reasons for ordering acquisition of land of the petitioners despite recommendation made to the contrary by the Land Acquisition Collector. We are satisfied with the procedure adopted by the State authorities in rejecting recommendation made by the Land Acquisition Collector, which otherwise also was not binding on the State government. Furthermore, this writ petition, having been filed at a belated stage, possibly cannot be entertained. Notification under Section 4 of the Act was issued on 1.10.2007, the petitioners allowed the grass to grow under their feet and filed this writ petition only in the year 2009. Their conduct in not agitating the matter promptly, disentitle them to get any relief under Articles 226/227 of the Constitution of India.
Civil Writ Petition No.4186 of 2009 10
In view of above, objection No.(i) raised by the petitioners is rejected.
In CWP No.8204 of 2009, it is contended by counsel for the petitioners that proper hearing was not given when objections were heard under Section 5-A of the Act.
We are of the opinion that the argument raised is liable to be rejected.
It is apparent from the records that after receipt of objections under Section 5-A of the Act, notice was given to the petitioners to appear before the Land Acquisition Collector on 21.7.2008, which they did. Award was passed on 28.7.2008. Despite issuance of notification under Section 4 of the Act on 31.7.2006, the petitioners woke up only after passing of the award and this writ petition was filed in the year 2009. In view of ratio of the judgments of the Hon'ble Supreme Court in Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC 698; Municipal Council Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48; C. Padma v. Dy. Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627; and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, JT 2008 (2) SC 280, this writ petition cannot be entertained.
Now, we will deal with objection No.(ii) raised by the petitioners in both the writ petitions.
Before dealing with objection on merits, it is necessary to note down few provisions of the Environment (Protection) Act, 1986 and the Rules framed thereunder.
Section 3 of the Act empowers the Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, Civil Writ Petition No.4186 of 2009 11 controlling and abating environmental pollution. To achieve above said object under the Act or any other law, the Central Government was mandated to plan and execute programmes, to lay down standards for the quality of environment, including emission etc. to put reasonable restrictions etc. to regulate pollution in the environment. Sub-section 2 of Section 3 give detail of all such activities which the Central Government is competent to undertake to achieve object of this Act i.e. the protection and improvement of environment and prevention of harassment to human beings, other living creatures, plants and properties.
As per record, this Act was enacted taking note of the parameters laid down, to preserve environment, by the United Nations Conference on the Human Environment held at Stockholm in the month of June, 1972.
Sub-section 3 of Section 3 of the Act empowers the Central Government to constitute authority/ authorities to monitor measures for protection of environment and to ensure compliance of the rules, regulations and instructions issued from time to time to achieve that object.
Section 6 empowers the Central Government to formulate rules to regulate environmental pollution. This Act has further laid down the norms to be observed by a person to run any industry or similar process or handling hazardous substances. Regulatory and preventive measures have also been mentioned to prevent environment pollution. To carry out purpose of this Act, the State government is also competent to formulate the rules.
As per the above said provisions, the Central Government enacted the Environment (Protection) Rules, 1986. Rule 5 lays down the parameters which the Central Government has to notice before putting on Civil Writ Petition No.4186 of 2009 12 any prohibition and restriction on the location of an industry and carrying on processes and operations in different areas within the country. Rule 5 of the Rules reads thus:-
"5. Prohibitions and restrictions on the location of industries and the carrying on processes and operations in different areas(1) The Central government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas-
(i) Standards for quality of environment in its various aspects laid down for an area.
(ii) The maximum allowable limits of concentration of various environmental pollutants (including noise) for an area.
(iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved.
(vi) Environmentally compatible land use. Civil Writ Petition No.4186 of 2009 13
(vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international confcrcnce1 association or other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by the Central Government to De relevant to the protection of the environment in an area.
(2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down.
(3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations Of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Civil Writ Petition No.4186 of 2009 14 Gazette and in such other manner as the Central government may deem necessary from time to time, give notice of its intention to do so.
(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the locations of the industries and carrying on of process or operations in that area.
(c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause
(a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette.
(d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may within one hundred and eighty days from such day of publication impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area.Civil Writ Petition No.4186 of 2009 15
4. Notwithstanding anything contained in sub-rule (3), whenever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (3)."
Reading of the provisions indicates that vast powers have been given to Central Government to lay down the norms in the shape of prohibition and restrictions to prevent environment pollution. To exercise powers the Central Government is required to issue notifications as per requirement from time to time.
Mr.Aggarwal to stress his argument has placed reliance upon ratio of the judgment of the Hon'ble Supreme Court in Karnataka Industrial Areas Development Board v. C.Kenchappa and others, (2006) 6 Supreme Court Cases 371, delivered on 12.5.2006, wherein after discussing various aspects of environmental pollution, it was observed as under:-
"100. The importance and awareness of environment and ecology is becoming so vital and important that we, in our judgment, want the appellant to insist on the conditions emanating from the principle of `Sustainable Development'.
(1) We direct that, in future, before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment.
(2) We also direct the appellant to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the Civil Writ Petition No.4186 of 2009 16 land is allotted for development. The said directory condition of allotment of lands be converted into a mandatory condition for all the projects to be sanctioned in future."
By referring to the observations made by the Hon'ble Supreme Court, Mr.Aggarwal has stated that it was mandatory for the State authorities to get prior environmental clearance from the State Level Environment Impact Assessment Authority (assessment authority). He also made reference to the notification (Annexure P-4/A), issued by Ministry of Environment and Forest on 14.9.2006 (in short P4/A), issued under sub- rule 3 of Rule 5 of the Environment (Protection) Rules 1986, for imposing certain restrictions and prohibitions on new projects/ activities or on the expansion or modernization of existing projects or activities based on their potential environmental impacts. In the schedule annexed with that notification, it was specified as to on which activity, what conditions will be applied to prevent environmental pollution. It was further envisaged that a project shall not be commenced unless getting clearance from the assessment authority.
Paragraph no.2 of the notification P4/A reads thus:-
"2. Requirements of prior Environmental clearance (EC):-
The following projects or activities shall require 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 maters falling under Category 'B' in the said Civil Writ Petition No.4186 of 2009 17 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."
Paragraph No.4 talks of categorization of projects and activities, which reads thus:-
"4. Categorization of projects and activities:-
(i) All projects and activities are broadly categorized in to two categories - Category A and Category B, based on the spatial extent of potential impacts and potential impacts on human health and natural and man made resources.
(ii) All projects or activities included as Category 'A' in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the Civil Writ Petition No.4186 of 2009 18 Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of this notification'
(iii) All projects or activities included as Category 'B' in the Schedule, including expansion and modernization of existing projects or activities as specified in sub paragraph (ii) of paragraph 2, or change in product mix as specified in sub paragraph (iii) of paragraph 2, but excluding those which fulfill the General Conditions (GC) stipulated in the Schedule, will require prior environmental clearance from the State / Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union Territory level Expert Appraisal Committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be treated as a Category 'A' project."
Paragraph No.6 envisages that application seeking prior environmental clearance shall be filed in a prescribed Form 1A. It reads thus:-
"6. Application for Prior Environmental Clearance(EC):-
An application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed herewith and Supplementary Form 1A, if applicable, as given in Appendix II, after the identification of prospective site(s) for Civil Writ Petition No.4186 of 2009 19 the project land/ or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. The applicant shall furnish, along with the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1A, a copy of the conceptual plan shall be provided, instead of the pre-feasibility report."
Emphasis supplied.
Paragraph No.7 set down the stages to deal with the application like, screening of application, appraisal by the experts, public consultation and overall appraisal of the project etc. Paragraph No.8 talks about grant or rejection of prior environmental clearance. It lays down the period within which order has to be passed.
Paragraph no.9 fixes the period for which validity of environmental clearance will remain in existence.
Paragraph No.10 talks of post environmental clearance monitoring.
Admittedly, as per schedule annexed with the notification P4/A, project in question would fall in category B. As per paragraph No.6, application for getting prior environmental clearance for this project has to be filed in Form 1A Appendix II. The applicant has to give the following details:-
"1. Land Environment (Attach panoramic view of the project site and the vicinity) Civil Writ Petition No.4186 of 2009 20 1.1. Will the existing landuse get significantly altered from the project that is no consistent with the surroundings? (Proposed landuse must conform to the approved Master Plan/ Development Plan of the area. Change of landuse if any and the statutory approval from the competent authority be submitted). Attach Maps of (i) site location,
(ii) surrounding features of the proposed site (within 500 meters) and (iii) the site (indicating levels & contours) to appropriate scales. If not available attach only conceptual plans.
1.2. List out all the major project requirements in terms of the land area, built up area, water consumption, power requirement, connectivity, community facilities, parking needs etc. 1.3. What are the likely impacts of the proposed activity on the existing facilities adjacent to the proposed site? (Such as open spaces, community facilities, details of the existing landuse, disturbance to the local ecology). 1.4. Will there by any significant land disturbance resulting in erosion, subsidence & instability? (Details of soil type, slope analysis, vulnerability to subsidence, seismicity etc. may be given).
1.5. Will the proposal involve alteration of natural drainage systems? (Give details on a contour map showing the natural drainage near the proposed project site) 1.6. What are the quantities of earthwork involved in the construction activity-cutting, filling, reclamation etc. Civil Writ Petition No.4186 of 2009 21 (Give details of the quantities of earthwork involved, transport of fill materials from outside the site etc.) 1.7. Give details regarding water supply, waste handling etc. during the construction period.
1.8. Will the low lying areas & wetlands get altered?
(Provide details of how low lying and wetlands are getting modified from the proposed activity) 1.9. Whether construction debris & Waste during construction cause health hazard? (Give quantities of various types of wastes generated during construction including the construction labour and the means of disposal)"
Column No.2 talks about details to be given regarding water environment. In the application further detail is to be given regarding effect on vegetation, fauna, air environment, aesthetics, socio-economic aspects, building materials, energy conservation and also detail regarding environment management plan.
After looking at the provisions of notification P4/A and Form 1A Appendix II, it is to be seen as to what are the requirements to get environmental clearance and at what stage.
For this project, which falls in category B in part 2 it has been stated that prior environmental clearance from assessing authority is required before "any construction work, or preparation of land by the project management except for securing the land is started on the project or activity."
Sub-para 6 indicates that application for prior environmental clearance is to be made after identification of prospective site(s) for the Civil Writ Petition No.4186 of 2009 22 project and or activities to which the application relates before commencing any construction activity or preparation of land at the site by the applicant. In application, to be moved in Form 1A, to get environmental clearance it needs to be stated that the proposed land use shall conform to the master plan/ development plan of the area. Change of land use certificate and statutory approval from the competent authority is required to be submitted with the application, along with maps, site locations etc. Project requirements in terms of land area, built up area, water consumption, power requirement, connectivity, community facilities, parking needs etc. are to be indicated in the application. What will be the effect of proposed activities on existing facilities adjacent to the proposed site shall also requires to be given. Requirement of water, effect of vegetation, air, change in aesthetics, what building material shall be used and what measures shall be taken for energy conservation are also to be mentioned in the application.
If that is so, it is not possible for us to accept argument raised by Mr.Aggarwal that prior environmental clearance before issuance of notification under Section 4 of the Act or at the maximum before passing of the award is required.
As per notification issued under Section 4 of the Act and the averments made in this writ petition, after finalization of the acquisition proceedings, the land acquired shall be handed over to HUDA (respondent No.4) and HUDA will develop the project. After issuance of notification under Section 4 of the Act, nobody knows how much land will be left out of acquisition in terms of objections filed by the land owners under Section 5- A of the Act. After issuance of notification under Section 6 of the Act, power still remains with the government to release land in terms of the Civil Writ Petition No.4186 of 2009 23 provisions of Section 48 of the Act. As per law, before passing of an award it is also permissible to the land owners to lay challenge to the notifications issued under Sections 4 and 6 of the Act. In many cases, their objections raised to those notifications in the Courts may be accepted and the land in their favour be released. As per ratio of various judgments of the Hon'ble Supreme Court, including in Swaran Lata etc. v. State of Haryana and others AIR 2010 Supreme Court 1664, no challenge to the acquisition lies after passing of the award by the Land Acquisition Collector. At that stage, probably, it will become known to the government as to how much land shall remain available with it for development in a particular project. As per provisions of notification P4/A, it is specifically mentioned that prior environment clearance is needed before start of any construction work or preparation of land by the project management except for securing land. It is contention of counsel for the respondents that in terms of the provisions mentioned above, environmental clearance is needed only after the land acquisition process has become final, exact quantum of land is known to the government and when it is handed over to HUDA. Before start of development activities at the project, application for clearance has to be moved. Mr.Sehgal specifically stated that not even a brick shall be laid to develop the project unless environmental clearance is granted to the government/ HUDA.
As per Oxford dictionary and thesaurus, the word "secure" would mean safe, reliable, stable/ obtain. Contention of counsel for the petitioners that the word secure would mean only to take steps to secure the land from encroachment is liable to be rejected. The word secure here would mean to acquire the land finally. If that is so, we are of the opinion that environmental clearance is needed only when exact quantum of land, after Civil Writ Petition No.4186 of 2009 24 passing of an award is known to the government and the project developers. This fact is apparent when we look into the conditions and the requirements to be mentioned in an application to be moved for environment clearance in Form 1A. It talks of submission of change of land use certificate granted by the competent authority with the application and statutory approval, map, site location, surrounding features like levels and contours of the site in question. It has to state about major requirements and their effect on the existing facilities existing near to the proposed site, effect of vegetation, energy conservation, air pollution has also to be mentioned. All these facts can be mentioned only when it is known to the government or HUDA, after going through the entire process of acquisition, as to how much land would remain available and not otherwise.
Contention of counsel for the petitioners that in terms of the judgment of the Hon'ble Supreme Court in Karnataka Industrial Areas Development Board (supra), prior approval is must, does not appear to be very sound because when that judgment was passed by the Hon'ble Supreme Court, detailed procedure as envisaged in notification P4/A was not available for perusal of the Hon'ble Supreme Court. Otherwise also, when we look into directions issued in para 100 of the above said judgment, the (i) part it only mandates that before acquisition of land etc. for development environment impact must be properly comprehended and the land be acquired if do not gravely impair the ecology and environment. In direction (ii), it is mandated that the State authorities shall incorporate a condition when allotting land for development to obtain clearance certificate from the Pollution Control Board. If we look at both the directions together, it becomes apparently clear that actually environmental clearance certificate is needed only before starting development activities. Civil Writ Petition No.4186 of 2009 25 Before that only assessment has to be done. If the authorities before initiation of acquisition proceedings have not undertaken the assessment process, it may be an irregularity and not illegality, which will not go to the root of the case.
In the present case, it has specifically been stated by Mr.Sehgal that before starting any development activity on the land acquired, the State/ HUDA shall get prior environmental clearance from the assessment authority.
A similar matter came up for hearing before a Division Bench of Madras High Court in J.Parthiban and others v. State of Tamil Nadu and others, AIR 2008 Madras 203 (DB). After noticing ratio of the judgment in Karnataka Industrial Areas Development Board (supra), it was observed as under:-
"21. The next submission before us is about the failure to obtain prior environmental clearance before initiation of the acquisition proceedings. Reliance is placed on the judgment of the Supreme Court in Karnataka Industrial Areas Development Board -vs- C.Kanchappa, 2006(6) SCC 371. In that case, the Court set aside the direction given by the Karnataka High Court to KIADB to leave a land of one kilometre as a buffer zone from the outer periphery of the village in order to maintain a ''green area'' towards preservation of land for grazing of cattle, agricultural operation, etc. The Court, however, directed that in future, before acquisition of lands for development, the KIADB must properly comprehend the consequence and adverse impact on the environment and that the lands acquired for development do not gravely impair the Civil Writ Petition No.4186 of 2009 26 ecology and environment. The Board was further directed to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for development. The Court has not issued a general direction that in all the projects the authority is duty bound to obtain prior environmental clearance before initiation of the acquisition proceedings. In fact, para.2 of the Notification dated 14.9.2006 issued by the Ministry of Environment and Forests, Government of India, provides that any project, which is covered by category (A) or category (B) before any construction work, or preparation of land by the project management except for securing the land, prior permission would be obtained. In a similar case, in respect of expansion of Mangalore Airport in the case of Environment Support Group & Others -vs- Union of India, decided on 07.2.2003, the Supreme Court declined to interfere with the order of the Karnataka High Court permitting the authority to proceed with the acquisition of lands, but directed that the Government shall comply with all applicable laws and also with environmental norms in constructing the Airport. Learned senior counsel Mr.V.T.Gopalan, appearing for the Airports Authority of India, as well as Mr.P.Wilson, learned Assistant Solicitor General appearing for the Union of India gave a categorical assurance that no construction activity would commence on the land before obtaining environmental clearance. It is also brought to our notice that an application Civil Writ Petition No.4186 of 2009 27 has already been made to the competent authority for necessary clearance.
We are of the opinion that interpretation given is correct. Unless exact quantum of land is known to the developers the future needs and necessities cannot be looked into.
Expansion plan for development of Pondicherry Port, without getting prior environmental clearance came up for consideration before their Lordships of the Hon'ble Supreme Court in Villianur Iyarkkai Padukappu Maiyam versus Union of India and others, (2009) 7 Supreme Court Cases
561. In that case also, it was contention of the petitioners therein that without getting prior environmental clearance, project cannot be started. After noticing facts of that case and provisions of law, it was observed as under:-
208. The record of the case indicates that concession agreement is already entered into between the Government of Pondicherry on one hand and the 11th and 12th respondents on the other, on January 21, 2006. Those respondents in terms of the concession agreement have incorporated a Special Purpose Vehicle (SPV) company known as Pondicherry Port Limited for implementation of the Port Development Project.
An Assignment agreement to this effect in favour of Pondicherry Port Limited is executed by the Respondent Nos. 11 and 12 and confirmed by the Government of Pondicherry. In terms of the Concession agreement, the Government of Pondicherry has entered into Lease and Possession agreement with the Special Purpose Vehicle Civil Writ Petition No.4186 of 2009 28 Company on February 4, 2006. The Lease-
hold occupancy is given to the Pondicherry Port Limited subject to obtaining necessary clearance including environmental clearance from the Government of India.
209. There is no manner of doubt that no one can be permitted to carry on construction activity which is prohibited by the CRZ. However, this being a project exceeding Rs.50 crores necessary environmental clearance has to be obtained from the Ministry of Environment and Forest Union of India. Before such consent is granted/obtained, a full Environmental Impact Assessment has to be done. During that exercise, public hearing would be conducted as a matter of rule and all the concerns expressed by the public will have to be taken due note of, by the authorities concerned.
210. The specific objections raised by the appellants will also have to be considered and they would be entitled to hearing by the competent authority. Mere submission of DPR is not the end of any decision making process. The implementation of the project as per DPR is solely dependent on the clearance to be given by the Ministry of Environment and Forest Government of India. There is no manner of doubt that the Government has every power to stop the project if it violates environmental safeguards The consideration of CRZ regulations would also be part of the said exercise. Further, the notification issued under the Environment Protection Act Civil Writ Petition No.4186 of 2009 29 clearly requires a prior consent and provides for an appeal to be filed before the tribunal constituted for the said purpose by an aggrieved party. The plea that the environmental clearance must precede the award of the project is wholly misconceived and is incorrect. The application form for obtaining environment clearance under the notification of 2006 makes it very clear that the application has to be made by the entity which has been entrusted with the project." (Emphasis supplied) Their Lordships of the Hon'ble Supreme Court have made it very clear that application to get environmental clearance has to be made by the entity which is supposed to undertake the development activity. In the present case, land will be handed over to HUDA only after getting possession after passing of the award on payment of compensation by it. Prior thereto, HUDA is not competent to move any application for getting environmental clearance. In the application, Form 1A, it is clearly mentioned that application has to be moved by project proponent i.e. HUDA in this case. For the project proponent, it is possible only when land has been secured either by way of land acquisition or sale or gift or lease etc. and not otherwise.
In view of facts mentioned above, contentions raised are rejected. However, we direct that immediately on pronouncement of award and taking possession of land under acquisition, process to get environmental clearance, shall be started by the HUDA and construction activity shall be started only after getting clearance from the assessment authority.
CWP Nos.8543 and 9422 of 2009 Civil Writ Petition No.4186 of 2009 30 Besides as above, it is grievance of the petitioners that their A class residential house and orchard, has been ordered to be acquired without any justification, notwithstanding recommendation to the contrary made by the Land Acquisition Collector.
We have seen the recommendation made by the Collector. There is no mention of orchard.
At the time of arguments, relief was restricted only with regard to building of the petitioners.
In reply filed, it has been stated that 1 kanal 8 marla of land with A class construction has already been released from acquisition. If that is so, no further relief can be granted to the petitioners in these cases. CWP Nos.8157 and 8198 of 2009 In these cases also, grievance is regarding acquisition of built up area of the petitioners. In reply, it is specifically stated that none of the petitioners has filed objections under Section 5-A of the Act at the relevant time. If that is so, in terms of the ratio of the judgment of the Hon'ble Supreme Court in Delhi Administration v. Gurdip Singh Uban and others, AIR 1999 SC 3822, objection to the acquisition cannot be entertained.
Regarding objection raised in CWP No.9726 of 2009, for non release of constructed area, it has been stated that construction was not in existence when notification under Section 4 of the Act was issued.
In other writ petitions, it is specifically stated that there is no proof of construction. Built up area was not released in CWP No.13257 of 2009 being of very inferior quality and alleged to have been constructed only with a view to avoid acquisition.
In view of facts mentioned above, all these writ petitions fail and are dismissed.
Civil Writ Petition No.4186 of 2009 31
(Jasbir Singh)
Judge
22.11.2010 (Augustine George Masih)
gk Judge