Gujarat High Court
Emami Agrotech Ltd vs Union Of India on 15 February, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/25267/2022 ORDER DATED: 15/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 25267 of 2022
==========================================================
EMAMI AGROTECH LTD.
Versus
UNION OF INDIA
==========================================================
Appearance:
MR DHAVAL C DAVE, SENIOR ADVOCATE ASSISTED BY MR. BHAUMIK
DHOLARIYA(7009) for the Petitioner(s) No. 1
MS AISHVARYA(8018) for the Respondent(s) No. 3
MS HETAL G PATEL, ASST.GOVERNMENT PLEADER for Respondent No.2
MRS KRISHNA G RAWAL(1315) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 15/02/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. By means of the present petition, the petitioner namely Emami Agrotech Limited seeks a direction in the nature of mandamus holding the action of respondent No.1 namely Ministry of Environment, Forests and Climate Change in withholding the Coastal Regulation Zone Clearance permission to the petitioner, as ex-facie illegal and arbitrary, and, consequently to direct the respondents and more particularly respondent No.1 to grant the Coastal Regulation Zone Clearance Page 1 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined permission to the petitioner within the stipulated time frame in accordance with the Office Memorandum dated 19.02.2021.
2. The assertion in the writ petition is that the petitioner has set up 3000 tones per day port-based refinery at Kandla at the estimated cost of around Rs.600 Crores (project). The petitioner is utilizing the port facility for importing crude edible oil for processing the same for manufacturing of various consumer products in which the petitioner deals with. To undertake the project, the petitioner proposed for laying a pipeline to transport crude edible oil from port to the refinery of the petitioner situated at Kandla. Deendayal Port Trust Board has already approved the pipeline route as per the land availability. The petitioner is laying 350 mm (M.S.) and 80 mm air pipeline for oil jetty "Y" junction of jetty area to the plant of the petitioner at Kandla. The entire pipeline route has been aligned in such a way that it does not require any tree cutting and Page 2 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined no mangroves is disturbed during the construction activity. The assertion is that out of the total length of edible oil pipeline of 4.81 Kilometers, approx. 660.3 meters falls under CRZ area (Coastal Regulation Zone Area). As per CRZ Notification dated 06.01.2011, the project requires Coastal Regulation Zone Clearance from the State Coastal Zone Management Authority and Ministry of Environment, Forests and Climate Change.
3. It is stated that Deendayal Port Trust vide letter dated 06.07.2020 had granted permission to the petitioner by allotting the plot at SIPC Location-2 (Kandla), subject to obtaining all the statutory permissions prior to the commencement of work and compliance of all the requirements from time to time. The petitioner vide application dated 19.01.2021 requested the Gujarat Coastal Zone Management Authority (State Coastal Zone Management Authority) to grant CRZ clearance, for the pipeline from "Y" junction of jetty area to the Page 3 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined manufacturing unit of the petitioner situated at Plot No.49 in SIPC-2, enclosing the necessary documents as required. The attention of the Court is invited by the learned Senior Counsel for the petitioner to paragraph '3.10' of the writ petition to submit that various plots situated in the vicinity of the petitioner's plot are having and using pipelines falling in CRZ area. It is contended that in anticipation of the grant of CRZ clearance on the application dated 19.01.2021, the petitioner had commenced the work of installation of the pipeline at the site. It is stated that the work of laying of pipeline is fully complete so far as the area falling outside CRZ is concerned, however, so far as the area falling within CRZ, the petitioner has not completed the work having commenced the same, inasmuch as, CRZ clearance was not received by the petitioner. It is, thus, contended that the work of laying of the pipeline is partially complete in CRZ area and the petitioner is not using the pipeline. Page 4 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024
NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined
4. With these contentions, it is submitted by the learned Senior Counsel for the petitioner that respondent No.3 namely Gujarat Coastal Zone Management Authority had issued a recommendation letter dated 06.09.2021 appended at page '98' of the paper-book which contains the recommendation of the State Government to the Ministry of Environment, Forests and Climate Change to grant CRZ clearance for the proposed project of the pipeline, subject to the strict compliance of the conditions mentioned therein. Despite the said recommendation, the respondent No.1 namely the Ministry of Environment, Forests and Climate Change has withheld the permission on the premise that the Office Memorandum dated 19.01.2021, the reference of which has been given in the recommendation letter dated 06.09.2021, has been stayed by the High Court of Bombay in PIL (L) No.8540 of 2021, restraining the Ministry from granting permission/clearance on the basis of the said Office Memorandum. Reference has also been given to Page 5 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined the order passed by the High Court of Madras in two writ petitions staying the Office Memorandum dated 19.01.2021. Placing the interim order passed by the High Court of Bombay at page '94' of the paper- book, it is contended by the learned Senior Advocate that the interim order passed in a Public Interest Litigation pending before the Bombay High Court is not binding on this Court and moreover, the same does not restrain the respondent No.1 namely the Ministry from granting any permission/clearance on the basis of the Office Memorandum dated 19.01.2021.
5. Referring to a decision of the Apex Court in Electrosteel Steels Limited vs. Union of India and others - 2021 SCC Online SC 1247, it was contended that the Apex Court has held therein that the Environment (Protection) Act, 1986 does not prohibit ex-post facto environmental clearance. It is held therein that some relaxation and even grant of ex-post facto environmental clearance in Page 6 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined accordance with law, in a strict compliance with the rules, regulations, notification and/or applicable orders, in appropriate cases where the projects are in compliance with, or can be made to comply with environment norms, is not impermissible. It is contended that pointing out technical irregularities by adopting rigid approach in rejecting the environment clearance to the projects which are otherwise compliant of the rules, regulations etc. has been disapproved therein. Reference is made to paragraph Nos. '83 and 84' of the said decision to vehemently argue that in case of requirement of prior environmental clearance before a project is commenced, ex-post facto environmental clearance can be granted.
6. With reference to the order of the Madras High Court as referred in the status of the application dated 19.01.2021, uploaded on the website of the Ministry of Environment, Forests and Climate Change, it is contended that the order passed by the Madras High Court has been stayed by the Apex Court. Page 7 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024
NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined
7. Ms.Aishwarya Gupta, learned advocate appearing for respondent No.3, however, substantiates the action of the Gujarat Coastal Zone Management Authority and the State Government in recommendation granted to the project of the petitioner on the basis of assertions in the CRZ clearance order dated 06.09.2021.
8. A perusal of the recommendation of respondent No.3 namely Gujarat State Coastal Management Authority in the communication dated 06.09.2021 addressed to the Ministry of Environment, Forests and Climate Change, indicates that the recommendation was made in view of the application dated 19.01.2021 moved by the petitioner, along with the Environment Impact Assessment Report by EQMS India Private Limited. The proposal was scrutinized and discussed in the 13 th and 55th meetings of the authority held on 09.02.2021 and 19.02.2021; respectively. The recommendation letter refers to the presentation made by the representatives of the unit before the authority Page 8 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined and that the Deendayal Port Trust has approved the current right of way for the edible oil pipeline. It is noted in the recommendation letter itself that the report with regard to CRZ violation by the unit had been received from the District Level CRZ Committee, Kutch, which indicated that the project proponent started activities without prior approval under CRZ Notification, 2011. Considering the same, the application was initially withheld by the authority in its 55th meeting. However, again on the representation made by the petitioner, with the request to reconsider the proposal as per the Office Memorandum dated 19.02.2021, of the Ministry of Environment, Forests and Climate Change, in 57th meeting held on 23.08.2021, the recommendation has been made to grant CRZ clearance for the proposed project of laying of pipeline in CRZ area.
9. From a reference of paragraph '4(3)' of the Office Memorandum dated 19.02.2021 issued by the Ministry, it is evident that Coastal Zone Management Authority was required to give specific Page 9 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined recommendations and to clarify that there is no violation/contravention of the CRZ norms, while making such recommendations and that the project is in consonance with the approved CZMP as per CRZ Notification, 2011. Taking note of the said clause of the Office Memorandum dated 19.02.2021, the recommendation has been made by the authority in the following manner :-
"The Gujarat Coastal Zone Management Authority deliberated the proposal of the M/S. Emami Agrotech Ltd. and after detailed discussion, and considering the OM dated 19-02-2021 issued by the MOEF&CC, GOI, the Authority decided to recommend to the Ministry Of Environment, Forests, and Climate Change, Government of India to grant CRZ Clearance for the project of Proposed 4.81 km edible oil and compressed air pipeline from Y Junction of Jetty area of M/s. Emami Agrotech Ltd. At. Kandla Taluka- Gandhidham, District Kutch with a condition to carry out mangrove plantation in 100 Ha. area with consultation of concern District Forest Office of Forest Department/Gujarat Ecology Commission as per MoEF&CC O.M. dated 19/02/2021 and deposit the required amount in Forest Department / Gujarat Ecology Commission, with some specific conditions."
10. It may be noted that the Ministry did not approve the recommendations of the State Coastal Page 10 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined Management Authority noticing that the project for ex-post facto clearance as recommended by the authority and noted as violation case, has not been submitted as per Office Memorandum dated 19.01.2021. In addition to the same, it was intimated that in view of the order of the Bombay High Court staying the Office Memorandum dated 19.01.2021, ex-post facto clearance cannot be granted. The stand of the respondent No.1 namely Ministry of Environment, Forests and Climate Change as communicated to the petitioner on 01.08.2022 appended at page '112' of the paper-book has been reiterated and reaffirmed by Mrs.Krishna G. Raval, learned advocate for respondent No.1. Ms.Hetal Patel, learned Assistant Government Pleader has appeared for the respondent State.
11. Having noted the above, we may record that the requirement of seeking prior clearance for any permissible activity within the CRZ area is incorporated in the Coastal Regulation Zone Notification dated 06.01.2011 issued by the Ministry Page 11 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined of Environment, Forests and Climate Change, in exercise of the powers under Section 3, sub-section (1), (2)(V) of the Environment (Protection) Act, 1986. Clause 4.2 of the notification provides the procedure for clearance of permissible activities, mentioned in Clause 4(i)(d). The procedure as provided therein requires the project proponent to comply with relevant documents seeking prior clearance under CRZ notification to the concerned State or Union Territory Coastal Zone Management Authority. The requirement is that the State Coastal Zone Management Authority shall examine the documents in accordance with the approved coastal zone management plan and in compliance with CRZ notification for making its recommendation within a period of sixty days from the date of receipt of the complete application. The Ministry of Environment, Forests and Climate Change shall then consider such projects for clearance based on the recommendation of the concerned State Coastal Zone Management Authority.
Page 12 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024
NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined
12. Coming to the Office Memorandum dated 19.02.2021 issued by the Ministry, the basis of claim of the petitioner, we may note that the said Memorandum refers to some decisions of the High Court of Jharkhand and the Apex Court, with the idea to deal with violation arising due to not obtaining a prior CRZ clearance for permissible activities. However, the fact remains that Office Memorandum dated 19.02.2021 does not amount to modification/variation of the conditions of the Notification dated 06.01.2011 which requires prior clearance of permissible activities in CRZ area. The question as to what would be the effect of the Office Memorandum dated 19.02.2021 and whether it is valid or not, is not the subject matter of consideration before us. The only question before us is as to whether in spite of the violations reported by the District Level CRZ Committee, Kutch, the State Coastal Zone Management Authority could have given recommendation to grant CRZ clearance for the proposed project vide Page 13 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined communication dated 06.09.2021 and further as to whether the observations in the letter of the Ministry dated 17.11.2021 that the recommendation by State Coastal Zone Management Committee has not been submitted as per Office Memorandum dated 19.02.2021 in spite of noting of it being a violation case, is sustainable.
13. The contention of the learned Senior Counsel for the petitioner is that in fact the petitioner has simply commenced the project and has not completed the same in the CRZ area and, as such, violation as reported by the District Level Committee are not such which would have any bearing on the recommendation made by the Coastal Zone Management Authority, which is otherwise subject to fulfillment of the conditions prescribed therein. It is stated that the case of the petitioner does not fall within the exclusion criteria as per the Office Memorandum dated 19.02.2021 so as to deny ex-post facto clearance which is to address such Page 14 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined violations which do not impact environment. The contention is that the Office Memorandum dated 19.02.2021 still survives and the withholding of permission by respondent No.1 for laying of pipeline in CRZ area, cannot be sustained.
14. In our considered opinion, the question as to whether in spite of violation reported, ex-post facto CRZ clearance could be given to the petitioner and whether the violation by the petitioner is such, which would be contrary to the Coastal Regulation Zone Notification dated 06.01.2011 would require a factual inquiry. From the recommendation letter dated 06.09.2021, it is evident that a report was submitted by the District Level CRZ Committee, Kutch which indicated that the project proponent (petitioner herein) started activity without prior approval under CRZ Notification, 2011. The said report is not before us. Moreover, the Apex Court in the case of Electrosteel Steels Limited (supra) relied upon by Page 15 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined the learned Senior Counsel for the petitioner has clarified that ex-post facto environmental clearance should not ordinarily be granted and certainly not for the asking, only.
15. We may further record that Section 3 of the Environment (Protection) Act, 1986 mandates 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, controlling and abating environment pollution. Sub-section (3) of Section 3 provides for constitution of an authority by the Central Government for the purpose of exercising and performing powers and functions of the Central Government under the Act, 1986. The National Green Tribunal under the National Green Tribunal Act, 2010 has been constituted which has jurisdiction over all civil cases where a substantial question relating to environment is involved, and such question arises out of the implementation of the enactment specified in Schedule-I. The issue in the Page 16 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024 NEUTRAL CITATION C/SCA/25267/2022 ORDER DATED: 15/02/2024 undefined instant case, as noted above, is about violation of the Notification dated 06.01.2011 issued by the Central Government under Section 3(1) and 2(V) of the Environment (Protection) Act, 1986, which is an enactment specified in Schedule-I of the National Green Tribunal Act, 2010. We are, therefore, of the considered opinion that the appropriate course of remedy for the petitioner is to approach the National Green Tribunal, which will be in a position to make factual inquiry to adjudicate the issues raised before us.
16. In view of the above, we dispose of the writ petition with the liberty to the petitioner to approach the National Green Tribunal for redressal of its grievance. It is, however, clarified that the observations made hereinabove will not come in the way of the petitioner in the proceedings, if any, drawn before the tribunal.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J) GAURAV J THAKER Page 17 of 17 Downloaded on : Tue Feb 20 20:41:28 IST 2024