National Green Tribunal
Arun Nathuram Gaikwad vs Secretary Environment Department ... on 26 February, 2024
Item No.2 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Original Application No.41/2023(WZ)
Arun Nathuram Gaikwad
.....Applicant
Versus
Secretary, Envt. Dept., Govt. of Maharashtra & Ors.
....Respondent(s)
Date of hearing: 26.02.2024
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr. Aditya Pratap, Advocate
Respondent(s) : Mr. Aniruddha Kulkarni, Advocate for R-1/Envt. Deptt.,
R-2/MCZMA & R-6/SEIAA- Maharashtra
Mr. Rahul Garg, Advocate for R-5/MoEF&CC.
ORDER
1. From the side of the applicant, learned counsel Mr. Aditya Pratap has appeared, who has filed one compilation today, which includes written submission along-with several Judgments of Hon'ble Supreme Court as well as of this Tribunal, in compliance with our previous order dated 16.02.2024, by which we had directed him to provide us copy of Judgments on which he wants to rely on, on the basis of which he could prima facie prove that the project in question would fall in the category of township and area development project, which would require prior EC to be obtained under Schedule -I (8) (b) by the Planning Authority.
2. He has relied upon the Judgment of Hon'ble Supreme Court in the matter of In Re: Construction of Park at Noida near Okhla Bird Sanctuary- Anand Arya & Anr. vs. Union of India & Ors. [(2011) 1 SCC 744: 2010 SCC Page 1 of 7 OnLine Hon'ble Supreme Court 1384], wherein our attention is drawn to following paras:-
"Page 2 of 7
"
3. In the above-mentioned case, the controversy involved was of a very large project of the Uttar Pradesh Government at NOIDA in respect of which two applicants, who are residents of Sector 15-A Noida, U.P., claiming to be a public spirited people, had raised objection stating that a huge unauthorized construction was being done at the instance of Government of Uttar Pradesh. It was alleged in that by the applicants that large number of trees were cut down for clearing ground for the project, which form part of a forest and for which, a prior permission was required from the Central Government. Therefore, this act was in gross vilation of Section 2(ii) of the Forest (Conservation) Act, 1980. The project involved massive constructions that were made without any prior environmental clearance from the Central Government based on environment impact assessment. The construction were, therefore, in complete breach of Environment (Protection) Act, 1986 and the notification issued under the said Act, the same was causing great harm and was bound to further devastate the delicate and sensitive ecological balance of the Okhla Bird Sanctuary, to which the site of the project lay adjacent. The said project was in complete Page 3 of 7 disregard of the direction of Hon'ble Supreme Court concerning "buffer Zones". This plea taken by the applicants was denied by the Uttar Pradesh Government stating that it was setting up a park that would develop and beautify the area in a unique way. The construction of the said park did not violation any law nor was there any infringement of the provisions of the Forest Act or the Environment (Protection) Act, 1986 and that the park caused no harm to the bird sanctuary.
4. The learned counsel for applicant has also relied upon the Judgment of the Principal Bench of this Tribunal in the matter of Vikrant Kumar Tongad vs. Delhi Tourism and Transportation Corporation & 3 Others (Original Application No.137/2014) [(2015) SCC OnLine NGT 3], wherein the question, which was considered by the Tribunal, was "Whether, constructing a 'bridge' across Yamuna is a 'project' or 'activity' that shall require prior Environmental Clearance from the Regulatory Authority, particularly, with reference to Entry 8(a) and/or 8(b) of the Schedule to the Environment Clearance Regulations, 2006?" After having considered the same, following was held by the Tribunal:-
"
1. We hold that construction of a 'bridge' or similar activity covering a buildup area ≥ 1,50,000 sq. mtrs. and/or covering an area of ≥ 50 hectares, would be covered under Entry 8(b) of the Schedule to the Regulations of 2006.
2. We direct Respondent No. 1 to obtain Environmental Clearance for the project in question. Such application would be submitted within a period of three weeks from the pronouncement of this Judgment.
3. The SEIAA shall consider the said application as Category 'B' project and would dispose it of by passing appropriate orders in accordance with law upon submission of Environmental Impact Assessment Report and in any case not later than six months from today.
4. Though the major part of the project has already been completed, we do not direct demolition thereof in public interest. However, we direct SEIAA to put such terms and conditions as may be necessary to ensure that there are no adverse impacts on environment, ecology, biodiversity and environmental flow of River Yamuna and its floodplain.
Page 4 of 7
5. We also direct that the SEIAA may impose conditions containing remedial measures to be taken by the Project Proponent to ensure that there is no environmental degradation.
6. We direct MoEF to comply with the directions issued by the Hon'ble Supreme Court in para 84 of the case of In Re: Construction of Park at NOIDA Near Okhla Bird Sanctuary v. Union of India (UOI) & Ors., (2011) 1 SCC 744."
5. Relying upon this Judgment, the learned counsel for applicant has argued that the Principal Bench of this Tribunal has held the construction of a 'bridge' or similar activity covering an area of ≥ 50 hectares would be covered under Entry 8(b) of the Schedule to Regulations of 2006. Therefore, in the case in hand also, the area of the project is mentioned as 122.10 hec., which is much more than 50 hec. and it would also be required prior EC by the Development Authority i.e. respondent No.3-MMRDA.
6. Apart from the said Judgment, the learned counsel for applicant has also placed reliance on the Judgment of the Eastern Zone Bench of this Tribunal passed in Appeal Nos.29 to 31 of 2022 (Conservation Action Trust & Anr. vs. MoEF&CC & Ors.) along-with other connected appeal, wherein Forest/Environmental Clearance, in respect of integrated project by Andaman and Nicobar Islands Integrated Development Corporation (ANIDCO) in Great Nicobar Island, is challenged, involving the following:-
a. International Container Transshipment Terminal (ICTT)-14.2 Million TEU b. Greenfield International Airport (4000 Peak Hour Passengers-PHP) c. Township & Area development d. 450 MVA Gas and Solar based power plant over an extent of 16610 hectares (Ha) in the Great Nicobar Islands.
7. After consideration of the same, it was held by the Tribunal that the project was, by and large, compliant and EC did not call for interference.
8. Having drawn our attention to this Judgment, it is urged by the learned counsel for applicant that the EC was granted for the "Integrated Development of International Container Transhipment Terminal (ICTT)- Page 5 of 7 14.2 Million TEU, Township & Area development and 450 MVA Gas and Solar based power plant in 16610 ha. Great Nicobar Islands, Nicobar District by M/s Andaman and Nicobar Islands Integrated Development Corporation Ltd." under the EIA Notification, 2006 and ICRZ Notification, 2019 as amended, subject to strict compliance of the following specific conditions, in addition to all standard conditions applicable for such projects.
9. It is further pointed out by the learned counsel for applicant that for this project, total area was more than 50 hec. and hence in the present case also, the area in question is above 50 hec., for which prior EC was required to be taken. Though we find in Form - I of this project, as we have downloaded from the Ministry of Environment, the EC was considered under 7(e)- Ports, harbours and not under 8(b) of the Schedule of the EIA Notification 2006.
10. The main thrust of the learned counsel for applicant to get this matter admitted is that the project is falling under Section 8(b) of the Schedule of EIA Notification, 2006, the land area of the project being ≥ 50 hectares as it was 122.10 hec, therefore, the Development Authority i.e. MMRDA-respondent No.3 was required to be obtained prior EC.
11. From the side of respondent No.5- MoEF&CC, learned counsel Mr. Rahul Garg has appeared, who has vehemently opposed the admission of this matter on the ground that the MMRDA-respondent No.3 would be only the Development Authority, which after developing the area would allot the individual plots to the persons, who would be developing the individual plots and at that time, if the total BUA area is found to be more than 20,000 sq. mtrs. then, they would seek prior EC at the relevant time and that Page 6 of 7 Phase-I was completed prior to the EIA Notification- 2006, hence this matter should not be admitted.
12. In order to decide this matter on merits, we are inclined to admit this application and is accordingly admit the same.
13. Registry is directed to issue Notice to the respondents, who have not appeared today, returnable within 04(four) weeks.
14. Applicant is directed to take necessary steps for service to the respondents by both ways (Dasti as well as by Registered Post) and also on available e-mail/WhatsApp and submit service affidavit within one week.
15. Applicant is also directed to provide copy of the application and relevant documents to the respondents within a week.
16. Respondents are directed to submit their reply affidavits within four weeks and also circulate the same to the applicant as also other respondents by available e-mail.
17. Rejoinder, if any, is directed to be submitted within one week thereafter.
Put up this matter for further consideration on 09.05.2024
18. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM February 26, 2024 Original Application No.41/2023(WZ) P.Kr Page 7 of 7