National Green Tribunal
R. K. Singh S/O Late Shri Nityanand Singh vs Union Of India Through Secretary ... on 9 September, 2020
Item No. 01
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 45/2019/EZ
R. K. Singh Applicant(s)
Versus
Union of India & Ors Respondent(s)
Date of hearing: 09.09.2020
CORAM: HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Mr. Sourabh Sharma, Advocate
For Respondent(s): Mr. Gora Chand Roy Choudhury,
Advocate for Respondent No.1,
Mrs. Aishwarya Rajyashree, Advocate for
Respondent Nos. 2,4&5,
Mr. Ashok Prasad, Advocate for
Respondent No.3,
Mr. Surendra Kumar, Advocate for
Respondent No.6.
Mr. Sibojyoti Chakraborti, Advocate for
CPCB,
ORDER
1. The applicant has filed this case alleging non- implementation of Environmental Impact Assessment Notification, 2006 in the State of Jharkhand in respect of building constructions. It is stated that the State of Jharkhand has undertaken various major constructions of buildings particularly in the cities of Ranchi, Jamshedpur, Bokaro and Deogarh without obtaining mandatory prior 1 environmental clearance under the EIA Notification, 2006 even when it is mandatory in respect of structures having more than 20,000 Sq. Ms. which is categorized as Category 8(a) in the schedule to the notification. Specific mention has been made of the Jharkhand High Court Building, Jharkhand Vidhan Sabha, P & M Hi-Tech City Centre Mall, Jamshedpur, Vijaya Garden Homes and Aastha Twin City.
2. Apart from the above, it is stated that there are large number of other structures and, as per the information obtained from the State Government under the RTI application, only 20 buildings and construction projects have thus far applied for environmental clearance since the year 2006. As a consequence, the ecology of the State has been affected due to the detrimental impact on the air quality, depletion in the level and the quality of the ground water and on soil fertility caused by indiscriminate disposal of construction and demolition wastes. According to the applicant, if environmental clearance had been obtained, it would have taken care to ensure that such deleterious effect did not occur.
3. The matter was taken up on 02.09.2019 when notice was issued upon the respondents and, having regard to the 2 nature of the case, a committee was constituted comprising of the following: (i). a representative of the Regional Office of the MoEF & CC at Ranchi and (ii) a representative of the SEIAA, Jharkhand. The SEIAA Jharkhand was directed to the nodal agency for coordination and logistic support. The committee was directed to verify on the merits of the statements contained in the Original Application and to submit a report and further, if the factual statements made in the application were found to be correct, appropriate action was directed to be taken in accordance with law against those who were in violation.
4. On 23.09.2019 an affidavit was filed on behalf of the Respondent no. 3, SEIAA Jharkhand which clearly revealed that the Assembly Building (Vidhan Sabha, Jharkhand) had been constructed without environmental clearance and a proposal had been submitted on 11.09.2017 for environmental clearance to the MoEF & CC in the violation category. The SEIAA, Jharkhand, to which the matter was referred proceeded with the ToR process. By order dated 23.09.2019, we had also indicated that since the cases fell under the purview of the violation notification dated 14.03.2017, action to be taken against the violators and 3 payment of environmental compensation assessed by the CPCB for environmental damage caused due to constructions. Alarming state of affairs was also noted in our order dated 06.01.2020 and on the next date i.e. 16.03.2020, it was noted that the window provided under the MoEF Notification dated 14.03.2017 had expired and, therefore, its validity having lapsed, it would be appropriate for the MoEF & CC to arrive at a decision. The State Government on its part was directed to recover the environmental compensations assessed by the CPCB as conveyed vide their affidavit filed on 12.03.2020. Show was also directed to be filed by the State Government to showcase as to why compensation assessed by the CPCB be not directed to be paid. Order dated 27.07.2020 would reveal that according to the learned Counsel for the State Government, EIA proceeding in respect of the Vidhan Sabha building had been completed and environmental compensation also granted.
5. The State of Jharkhand filed an affidavit on 09.08.2020 to place on record the present status in respect to the matter according to which is as follows:-
1.1 Status of EC of Buildings mentioned in the plea:-
Sl. Name of Urban Local Environmental Action Taken 4 No. Building/Constructio Bodies (ULB) Clearance (EC) n Status 1 P&M Hi-Tech City Jamshedpur Not Obtained yet Directed by ULB to Centre Mall obtain the EC at 2 Vijaya Garder Homes Jamshedpur the earliest (via letter no. 1312 dated 19.06.2020).
1.2 Status of EC of other Buildings in the Jharkhand:-
Sl. Name of Applicant Urban Local Environmental Action Taken No. Bodies (ULB) Clearance (EC) Status
1. Ashiana housing Ltd. Adityapur EC obtained via Not Applicable Building Permit No. Municipal letter no.
Corporation EC/SEIA/2018
19/2102/2018/
334 dated
02.08.2019
2. Juidco Ltd. File No. Dhanbad EC had been applied for the old site (in
Dhanbad Municipal Municipal fire zone) which was earlier selected for
Corporation/AH/0230/ Corporation construction but as new site of
W37/2019 construction is being looked for so EC
status is not pertaining to this project unit finalization of new site.
3. P&M Infrastructure Jamshedpur Without EC Directed by ULB to Pvt. Ltd. Notified Area obtain the EC at the Committee earliest via i. Lt. No. 1312 dated 19.06.2020 ii. Lt. No. 1845 dated 02.09.2020.
4 M/s Vijaya Homes Jamshedpur Without EC Directed by ULB to Maker Pvt. Ltd. Notified Area obtain the EC at the earliest via i. Lt. No. 1312 dated 19.06.2020.
ii. Lt no. 1845 dated 02.09.2020 5 5 Sri Phanidra Mahto, Jamshedpur Without EC Directed by ULB to Director, Vijaya Homes Notified Area obtain the EC at the Pvt. Ltd. 2nd Floor Committee earliest via Gajraj mention Bistupur Building i. Lt. N o. 1312 dated 19.06.2020.
Permit No. 27226 ii. Lt. No. 1845 dated 02.09.2020.
6 Sri Phanidra Mahto, Jamshedpur Without EC Directed by ULB to Director, Vijaya Homes Notified Area obtain the EC at the Pvt. Ltd. 2nd Floor Committee earliest via Gajraj mention Bistupur Building i. Lt. N o. 1312 dated 19.06.2020.
Permit No. 27226 ii. Lt. No. 1845 dated 02.09.2020 7 Director, Vijaya Homes Jamshedpur Without EC Directed by ULB to Pvt. Ltd. 2nd Floor Notified Area obtain the EC at the Gajraj mention Committee earliest via Bistupur Building Permit No. 27426 i. Lt. N o. 1312 dated 19.06.2020.
ii. Lt. No. 1845 dated 02.09.2020 8 Sri Phanidra Mahto, Jamshedpur Without EC Directed by ULB to Director, Vijaya Homes Notified Area obtain the EC at the Pvt. Ltd. 2nd Floor Committee earliest via Gajraj mention Bistupur Building i. Lt. N o. 1312 dated 19.06.2020.
Permit No. 27809 ii. Lt. No. 1845 dated 02.09.2020 9 Sri Phanidra Mahto, Jamshedpur Without EC Directed by ULB to Director, Vijaya Homes Notified Area obtain the EC at the Pvt. Ltd. 2nd Floor Committee earliest via Gajraj mention Bistupur Building i. Lt. N o. 1312 dated 19.06.2020.
Permit No. 27898 ii. Lt. No. 1845 dated 02.09.2020 10 Sri Phanidra Mahto, Jamshedpur Without EC Directed by ULB to Director, Vijaya Homes Notified Area obtain the EC at the Pvt. Ltd. 2nd Floor Committee earliest via Gajraj mention Bistupur Building i. Lt. N o. 1312 dated Permit No. 28227 19.06.2020.
ii. Lt. No. 1845 dated 02.09.2020 6 11 Sri Shyam Sundar Jamshedpur Without EC Directed by ULB to Gaur, Director Vijaya Notified Area obtain the EC at the Homes Pvt. Ltd. 2nd Committee earliest via Floor Gajraj Mention Bistupur Building i. Lt. N o. 1312 dated Permit No. 28314 19.06.2020.
ii. Lt. No. 1845 dated 02.09.2020 12 Sri Shyam Sundar Jamshedpur Without EC Directed by ULB to Gaur, Director Vijaya Notified Area obtain the EC at the Homes Pvt. Ltd. 2nd Committee earliest via Floor Gajraj Mention Bistupur Building i. Lt. N o. 1312 dated Permit No. 28322 19.06.2020.
ii. Lt. No. 1845 dated 02.09.2020 13 Sri Shyam Sundar Jamshedpur Without EC Directed by ULB to Gaur, Director Vijaya Notified Area obtain the EC at the Homes Pvt. Ltd. 2nd Committee earliest via Floor Gajraj Mention Bistupur Building i. Lt. N o. 1312 dated Permit No. 28333 19.06.2020.
ii. Lt. No. 1845 dated 02.09.2020 14 Sri Shyam Sundar Jamshedpur Without EC Directed by ULB to Gaur, Director Vijaya Notified Area obtain the EC at the Homes Pvt. Ltd. 2nd Committee earliest via Floor Gajraj Mention Bistupur Building i. Lt. N o. 1312 dated Permit No. 28453 19.06.2020.
ii. Lt. No. 1845 dated 02.09.2020 15 Sri Shyam Sundar Jamshedpur Without EC Directed by ULB to Gaur, Director Vijaya Notified Area obtain the EC at the Homes Pvt. Ltd. 2nd Committee earliest via Floor Gajraj Mention Bistupur Building i. Lt. N o. 1312 dated Permit No. 28557 19.06.2020.
ii. Lt. No. 1845 dated 02.09.2020 16 M/s Tribhumi Housing Jamshedpur Without EC Directed by ULB to Pvt. Ltd. Sri Shyam Notified Area obtain the EC at the Sundar Gaur, Director, 7 Vijaya Homes Pvt. Ltd. Committee earliest via 2nd Floor Gajraj Bistupur Building i. Lt. N o. 1312 dated Permit No. 28612 19.06.2020.
ii. Lt. No. 1845
dated
02.09.2020
17 M/s Gailtricks Jamshedpur Without EC Directed by ULB to
Developers Pvt. Ltd. Sri Notified Area obtain the EC at the
Shyam Sundar Gaur, Committee earliest via
Director, Vijaya Homes
Pvt. Ltd. 2nd Floor i. Lt. N o. 1312
dated
Gajraj Bistupur
19.06.2020.
Building Permit No.
28625 ii. Lt. No. 1845
dated
02.09.2020
18 M/s Gailtricks Jamshedpur Without EC Directed by ULB to
Developers Pvt. Ltd. Sri Notified Area obtain the EC at the
Shyam Sundar Gaur, Committee earliest via
Director, Vijaya Homes
Pvt. Ltd. 2nd Floor i. Lt. N o. 1312
dated
Gajraj Bistupur
19.06.2020.
Building Permit No.
28722 ii. Lt. No. 1845
dated
02.09.2020
19 P&M Infrastructure Jamshedpur Without EC Directed by ULB to
Pvt. Ltd. Khata No. 2 Notified Area obtain the EC at the
Plot No. 952(P), 966(P), Committee earliest via
9723(P), Ward No. 4,
Jamshedpur Building i. Lt. N o. 1312
dated
Permit No. 28846
19.06.2020.
ii. Lt. No. 1845
dated
02.09.2020
20 M/s Samay Mango Without EC Directed by ULB to
Construction Pvt. Ltd. Municipal obtain the EC at the
Plot No. 3621(P), Corporation earliest via
3642(P), 3643(a,b,c),
3645(P). Khata No. 312 i. Lt. N o. 1312
dated
Mauza-Paridih. Ward
19.06.2020.
No. 8. Old Purulia
Road, Mango ii. Lt. No. 1845
dated
02.09.2020
21 Panchwati IV Y Ramgarh Without EC Notice by ULB to
Municipal stop construction
Council via Lt. no. 913 dated
20.08.2020
8
22 Green Valley Ramgarh Without EC Notice by ULB to
Municipal stop construction
Council via
i. .Lt. no. 333
dated
05.03.2020
ii. Lt. No. 673 dated
26.05.2020
iii. Lt. no. 913 (A)
dated
20.08.2020
23 (i) Vibgyor Estates Ramgarh The Proposal is Directed by ULB to
Pvt. Ltd (ii) Municipal pending at obtain the EC at the
High Street Council SEAC, earliest via Lt. no.
Enterprises
Jharkhand. 507 dated
(P) Ltd.
(ii) File No. 02.09.2020
Building
Permit
Wo2/0162/
17
24 M/s Assotech New City Ramgarh Not Obtained Directed by ULB to
LLP& Assotech Sun Municipal yet obtain the EC at the
Growth Abade LLP File Council earliest via Lt. no.
No. Building Permit 507 dated
W04/0165/16 02.09.2020
25 Chalice Real Estate LLP Ranchi Not Obtained Directed by ULB to
through its designated Municipal yet obtain the EC at the
partner Mr. BIshnu Corporation earliest via Lt. no.
Kumar Agarwal 509 dated
02.09.2020
File No. Building Permit
/W06/0031/18
26 Chalice Real Estate LLP Ranchi Not Obtained Directed by ULB to
through its designated Municipal yet obtain the EC at the
partner Mr. BIshnu Corporation earliest via Lt. no.
Kumar Agarwal 510 dated
02.09.2020
File No. Building Permit
/W06/0310/17
27 Estate Buidcon Pvt. Ltd Ranchi Not Obtained Directed by ULB to
Director Sumeet Kumar Municipal yet obtain the EC at the
Agarwal Corporation earliest via Lt. no.
511 dated
File No. Buidling 02.09.2020
Permit/WO6/0419/17
28 Ankroday Kumar File Ranchi Not Obtained Directed by ULB to
No. Building Permit Municipal yet obtain the EC at the
/WO7/0419/17 Corporation earliest via Lt. no.
512 dated
02.09.2020
9
29 Ranchi Municipal Ranchi Not Obtained Directed by ULB to
Corporation Municipal yet obtain the EC at the
Corporation earliest via Lt. no.
File No. Building 513 dated
Permit/W22/0315/17 02.09.2020
30 Arvind Ram Sahu, Ranchi Not Obtained Directed by ULB to
Shyam Kishor Ram, Municipal yet obtain the EC at the
Asha Devi, Arvind Corporation earliest via Lt. no.
Kishor Ram, Babloo 514 dated
Ram, Rajendra Ram, 02.09.2020
Basant Prased, Power
of Attorney Holder-
Land Owner Name
Manorma Barju Ram
Sahu
File No. Building
Permit/W36/0364/18
31 Amrit Mahto, Basant Ranchi Not Obtained Directed by ULB to
Kumar Sahu, Gopal Municipal yet obtain the EC at the
Sahu, Kanhai Mahto Corporation earliest via Lt. no.
and Ramdayal Mahto 515 dated
02.09.2020
File No. Building Permit
W36/0821/18
32 Shobha Mandal, Ranchi Not Obtained Directed by ULB to
Dinesh Mandal, Kapil Municipal yet obtain the EC at the
Ram, Kashi Ram Sahu, Corporation earliest via Lt. no.
Parichan Sahu, 516 dated
Lalchand Sahu, 02.09.2020
Dharichand Sahu,
Devendra Ram Sahu,
Devanand Sahu,
Permanad Ram,
Shukhlal Ram, Dinesh
Ram, Jaglal Ram,
Chotelala Ram, Barju
Ram Sahu, Smt.
Sushila Devi, Smt.
Jitan Devi
File No. Building Permit
W37/0298
33 Udit Ram and Sadhu Ranchi Not Obtained Directed by ULB to
Mahto Municipal yet obtain the EC at the
Corporation earliest via Lt. no.
File No. Building Permit 517 dated
W38.0133.17 02.09.2020
34 Anita Srivastava, Ratan Ranchi Not Obtained Directed by ULB to
Lal Kasyap, Yogesh Municipal yet obtain the EC at the
Kumar Sahu, Bhago Corporation earliest via Lt. no.
10
Devi, Pawan Kumar 518 dated
Sahu, Praveen Kumar 02.09.2020
Sahu, Prabht Kumar
Sahu, Rama Mahto,
Neelam Devi,
Jagnarayan Sahu,
Nirmala Devi, Bigal
Ram, Govardhan Sahu,
Jugal Ram Sahu,
Madan Ram, Sandeep
Kumar, Kuldeep
Kumar, Umesh Ram
Sahu, Lt No. 507 dated
02.09.2020 Rupesh
Kumar, Prakash
Kumar, Sud Lt. No.
507 dated 02.09.2020
hir kumar
File No. Building
35 Mahavir Kanshi, Ranchi Not Obtained Directed by ULB to
Urmila Devi, Parmand Municipal yet obtain the EC at the
Kumar, Shivanad Corporation earliest via Lt. no.
Kumar, Sachidanand 519 dated
Kumar 02.09.2020
File No. Building Permit
W52/0353/18
36 Ranchi Smart City Ranchi Accorded vide Directed by ULB to
Corporation Limited Municipal letter no obtain the EC at the
Corporation EC/SEIAA/201 earliest via Lt. no.
File No. Building Permit 8 520 dated
W54/0317/17 19/2089/2018/ 02.09.2020
287 dated
20.06.19
37 Jharkhand Urban Ranchi Not Obtained Directed by ULB to
Infrastructure Municipal yet obtain the EC at the
Development Limited Corporation earliest via Lt. no.
File No. Building Permit 521 dated
W54/0317/17 02.09.2020
38 Laxmi Devi, Meen Devi, Ranchi Not Obtained Directed by ULB to
Ajay Kumar, Hila Devi, Municipal yet obtain the EC at the
S. Ram, RR Sahu, S.K. Corporation earliest via Lt. no.
Ram, A.K. Ram, A. Devi 522 dated
R. Ram, B. Sahu, S. 02.09.2020
Prasad, P. Kuar, S.
Kasyap, S. Kasuap, D.
Kasyap, R Kashyap, R.
B. Kashyap M.
Kashyap, B. Kasyap, S.
Kasyap, R. Kumar
11
File No.
RMC/AH/0009/W36
39 Assotech Sun Growth Ranchi Not Obtained Directed by ULB to
Abode LLP Municipal yet obtain the EC at the
Corporation earliest via Lt. no.
File No. 523 dated
RMC/AH/0139/W04/2 02.09.2020
019
40 Rizwan Ahmad Ranchi Not Obtained Directed by ULB to
Mahadeo Oraon, Municipal yet obtain the EC at the
Bhadwa Oraon, Dilip Corporation earliest via Lt. no.
Oraon, Karma Oraon 524 dated
02.09.2020
File No. RMC/Building
Permit/0232/W01/201
9
41 Nandlal Mahto, Lav Ranchi Not Obtained Directed by ULB to
Mahto, PParth Mahto, Municipal yet obtain the EC at the
Manoj Mahto, Santosh Corporation earliest via Lt. no.
Mahto, Sahdeo Mahto, 526 dated
Nilamber Mahto, Rohit 02.09.2020
Mahto, Hirala Mahto,
Radheshyam Ram,
Munna Sahu, Kailash
Sahu, Prakash Sahu,
NisithKumar, Keshari
Babita Kumari and
Kari Devi
File No.
RMC/GH/0294/W36/
20
42 ESIC Hospital, Ranchi Not Obtained Directed by ULB to
Industrial Area, Municipal yet obtain the EC at the
Namku, Ranchi (Built Corporation earliest via Lt. no.
up Area-25876.56) 527 dated
02.09.2020
43 Shakabari Builders Ranchi Not Obtained Directed by ULB to
PVt. Ltd. Shri Pawan Municipal yet obtain the EC at the
Bojan, Sri Ram Corporation earliest via Lt. no.
Garden, 2nd Floor, 528 dated
Kanke Road, Ranchi 02.09.2020
(Built up Area-
86339.92)
44 Jitendra Kumar Singh Ranchi Not Obtained Directed by ULB to
and Others, Ganpat Municipal yet obtain the EC at the
Palace, Near Nayak Corporation earliest via Lt. no.
Talak, Dumsa Toli, 529 dated
Ranchi- 834001) 02.09.2020
12
(Built up Area-
34277.3)
45 Pranami Estates Pvt. Ranchi Not Obtained Directed by ULB to
Ltd and Others, 4th Municipal yet obtain the EC at the
Floor, Cross Wear Corporation earliest via Lt. no.
Katchary Rod, Ranchi 530 dated
(Built up Area- 02.09.2020
25505.51)
46 Satish Kumar and Ranchi Not Obtained Directed by ULB to
Others at Vashundhara Municipal yet obtain the EC at the
Homes Pvt. Tld Balbir Corporation earliest via Lt. no.
Villa, Near Gate No. 02, 531 dated
Main Ashok Nagar 02.09.2020
Road, P.S Argora,
Ranchi
(Built up Area-
33695.35)
47 Viabhay Saraf and Ranchi Not Obtained Directed by ULB to
Others, Upper Bazar, Municipal yet obtain the EC at the
Ranchi Corporation earliest via Lt. no.
532 dated
(Built up Area- 02.09.2020
22069.35)
48 Morias Infrastructure Ranchi Not Obtained Directed by ULB to
Pvt. Ltd. Pustal Municipal yet obtain the EC at the
Bhawan, Cout Road, Corporation earliest via Lt. no.
Ranchi 834001 (Built 533 dated
up Area-31245.17) 02.09.2020
49 City Select Developers Ranchi Not Obtained Directed by ULB to
and Others, City Select Municipal yet obtain the EC at the
Developers, 57A, main Corporation earliest via Lt. no.
Road, Ranchi (Built up 534 dated
Area-27656) 02.09.2020
50 Sri Ram Ozone Housing Ranchi Not Obtained Directed by ULB to
Development Pvt. Ltd. Municipal yet obtain the EC at the
301, Sunrise forum, Corporation earliest via Lt. no.
100 Bhudwan 535 dated
Compound, Circular 02.09.2020
Road, Ranchi (Built up
Area-30012.303)
51 Morias Infrastructure Ranchi Not Obtained Directed by ULB to
Pvt. Ltd. Pustal Municipal yet obtain the EC at the
Bhawan, Cout Road, Corporation earliest via Lt. no.
Ranchi 834001 (Built 536 dated
up Area-45795.9) 02.09.2020
52 Sarawgi Builders and Ranchi Not Obtained Directed by ULB to
Promoters Ltd. 201 2nd Municipal yet obtain the EC at the
Floor, MR tower, Corporation earliest via Lt. no.
Sharda BabuStreet, 537 dated
13
Line Tank Rod, Ranchi 02.09.2020
834001
(Built up Area-
24888.13)
53 Adarsh Heights Pvt Ltd. Ranchi Not Obtained Directed by ULB to
Room No. 08, 9th Floor Municipal yet obtain the EC at the
Shanti Niketan Corporation earliest via Lt. no.
Building 8 Canal 538 dated
Street, Kokata-700017, 02.09.2020
West Bengal
(Built Up Area-
33897.83)
54 Sheo Narayan Jaiswal, Ranchi Not Obtained Directed by ULB to
Ranchi Distilliary, Old Municipal yet obtain the EC at the
Hazaribagh Road, Corporation earliest via Lt. no.
Lalpur, Ranchi - 539 dated
834001 (Built up Area- 02.09.2020
9043.24)
55 IIM Ranchi Ranchi Details not available. However, as per
Municipal MoEF & CC Clarification vide letter no
(Area of Construction Corporation 19-20/2013 IA-III dated 09.06.2015
81109.80) Educational Institues are exempted
from obtaining prior EC subject to Sustainable Environment Management.
6. The MoEF has also filed an affidavit in which it is inter alia stated as follows:-
"11. It is submitted that the Answering Respondent issued Notification No. S.O. 804 (E) dated 14.03.2017 to deal with the cases of violation by ensuring immediate arrest of environmental damage and bringing the enterprise in compliance regime rather than letting it go as such or completely restore the ante original state. It is further submitted that the 14 Answering Respondent vide the said Notification dated 14.03.2017 opened a window of 6 months for the projects which failed to obtain prior environmental clearance in accordance with EIA Notification, 2006.
12. It is submitted that the Notification dated 14.03.2017 was challenged by way of WP No. 11189/2017 before the Hon'ble High Court of Madras and the same has been upheld by the judgment dated 13.10.2017. However, during pendency of the case, the Notification was stayed vide order dated 06.06.2017. The Answering Respondent sought clarification with respect to the expiry of the Notification after the judgment dated 13.102017 and the Hon'ble Court granted a further period of 30 days for the window provided in the Notification. It is further submitted that as on date, the window provided for the projects which failed to obtain prior environmental clearance has expired and there is no prevailing provision whereby the concerned authority can deal with such violation cases.
13. It is submitted that the in compliance of order dated 06.01.2020 passed by this Hon'ble Tribunal, matter has been discussed in the Ministry and it has 15 observed that violation case being recurring in nature may come to the notice in future during the process of appraisal or monitoring or inspection by Regulatory Authorities, Ministry also deems it necessary to lay down the procedure to bring such violation projects under the regulations in the interest of environment at the earliest point of time rather than leaving them unregulated and unchecked, which will be more damaging to the environment. Therefore, Ministry is in the process a comprehensive review of the EIA Notification, 2006. It is further submitted that the Ministry has issued a draft EIA Notification, 2020 vide Notification No. S. O. 1199 (E) dated 23.02.2020. To deal with the violation cases, following mechanism inter-alia has been proposed in para 22 of draft EIA Notification, 2020, as follows:-
I. The cognizance of the violation of the EIA Notification shall be made on the:
a. suo moto application of the project or b. reporting by any government authority or c. found during the appraisal of the Expert Committee or 16 d. during the processing of application, if any by the Regulatory Authorities.
II. The cases of violation will be appraised by the Appraisal Committee with a view to assess that the project has been constructed or carried at a site, which under prevailing laws is permissible and expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safeguards. In case, where the finding of the Appraisal Committee is negative, closure of the project shall be recommended along with other actions under the law; III. In case, where the finding of the appraisal Committee are positive, the project under this category will be prescribed with appropriate specific terms of Reference (ToR) on assessment of ecological damage, remediation plan and natural and community resource augmentation plan in addition to the slandered applicable to the project. IV. The CPCB shall issue guidelines for assessment of ecological damage from time to time. V. The project proponent shall prepare the report of assessment of ecological damage as per the 17 guidelines issued by the CPCB in this regard from time to time, along with remediation plan natural and community recourse augmentation plan as an independent chapter in the EIA report through an Accredited Consultant Organization. VI. The Appraisal Committee shall stipulated the implementation of EMP, comprising remediation plan and natural and community resource augmentation plan corresponding to the one and half times the ecological damage assed and economic benefit derived due to violation in case of the suo moto application or two times the ecological damage assessed and economic benefit derived due to violation in cases reported by any Government Authority or found during the appraisal of Appraisal Committee or during the appraisal of Appraisal Committee or during the processing of the Application if any by the Regulatory Authority, as a condition of Environment Clearance or Environment Permission as the case may be.
VII. The Project Proponent will be required to submit a blank guarantee valid for five years equivalent to the amount of Remediation plan and Natural and 18 Community Resource Augmentation plan with the SPCB or UTPCB as the case may be and the quantification will be recommended by Appraisal Committee and finalized by the Regulatory Authority, with a condition to implement the same within a period of three years.
VIII. The project proponent shall prepare the EIA report and conduct public consultation as per the provisions in the EIA Notification. IX. The appraisal of the proposals shall be carried as per the provisions given in EIA Notification. X. Further, the action will be taken against the project proponent by the respective State Government or Union Territory Administration or SPCB or UTPCC as the case may be, under the provisions of section 19 of the Environment (Protection) Act, 1986. A copy of draft notification dated 23.03.2020 is annexed herewith as Annexure-I
14. It is submitted that at present no mechanism available with the Answering Respondent to deal with the cases which are in violation of the EIA Notification, 2006.
19
15. It is submitted that the mechanism to deal with the cases which are in violation of the EIA Notification, 2006, proposed in para 13 above is in draft stage and published and uploaded in the website of the Ministry for seeking objections or suggestions on the proposal contained in the draft notification."
7. The status report of the State of Jharkhand reveals as many as 35 major structures which have been constructed admittedly without obtaining prior Environmental Clearance.
8. Admittedly, the violation notification dated 14.03.2017 has ceased to have effect and it is admitted by the MoEF that at present no mechanism is in existence to deal with the situation as prevailing in the present case except that a draft EIA Notification, 2020 has been published under paragraph 22 in which procedure has been laid down to deal with the situation. The notification is yet to be published leaving a vacuum in the procedure to deal with such matters.
9. In the above circumstance the Tribunal is faced with the serious dilemma as regards the course of action to be taken. Mr Sourabh Sharma, learned Counsel for the Applicant has suggested that Environmental Compensation ought to be 20 recovered from those violating the EIA Notification and to direct institution of prosecution under section 19 of the Environment (Protection) Act, 1986 against those responsible for the violation. It is further submitted that in the meanwhile the ongoing constructions of structures being undertaken without EC be directed to be stopped until it is obtained by the project proponents.
10. We have considered the various affidavits filed by the parties, considered the oral submissions of the learned Counsel for the parties and we are of the view that it would be necessary to take action to remedy the situation keeping in view that principle of sustainable development and the precautionary principle.
11. We, therefore, direct as follows :-
i. The State Government through the Urban Development Department shall ensure that Environment Impact Assessment is undertaken in respect of all the structures which have been raised in the municipal areas expeditiously in accordance with the procedure laid down in the EIA Notification 2006. Accordingly, the Environmental Management Plan be prepared 21 and mitigation measures proposed therein be implemented so as to address the environmental issues arising on account of such constructions without EC.
Similar action shall be taken in respect of the structures falling within notified Nagarpalika areas and Gram Panchayats, if there be any. ii. Environmental Compensation shall be assessed in respect of all the structures which have been raised without EC and shall be recovered from the appropriate authorities/persons/builders/project proponent (as the case maybe) within a period of three months from hence. Environmental Compensation in respect of those which have already been assessed shall also be recovered within the said period.
iii. All ongoing constructions undertaken without obtaining prior EC shall be stopped forthwith until the environmental clearance is obtained. iv. Action shall be initiated under section 19 of the Environment (Protection) Act, 1986 by the State Pollution Control Board forthwith against those who are responsible for the violations. 22
v. Since the violations were being committed under the gaze of the concerned authorities, we direct initiation of disciplinary proceedings against the concerned Officers, the Municipal Commissioners and the State Pollution Control Board at the earliest.
12. With the above directions the Application stands disposed off. However the State Government of Jharkhand and the State Pollution Control Board shall file their reports of the action taken in terms of the above directions within 6 (six) months from hence by e-mail at [email protected].
S.P. Wangdi, JM Dr. Nagin Nanda, EM 9th September, 2020 Original Application No. 45/2019/EZ pk 23