National Green Tribunal
Biswajit Singh vs Union Of India Through The Chief ... on 5 November, 2020
1
Item No. 01
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No. 08/2019/EZ
(I.A. No. 35/2019)
Bishwajit Singh Appellant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 05.11.2020
CORAM : HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HONB'LE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Appellant(s): Mr. Saurabh Sharma, Advocate
For Respondent(s): Mr. Gora Chand Roy Choudhury,
Advocate for Respondent No. 1.
Ms. Aishwarya Rajyashree, Advocate
for Respondent No. 2.
Mr. Ashok Prasad, Advocate for
Respondents No. 3 & 4.
ORDER
1. The Appeal has been filed challenging Environment Clearance (EC) dated 20.06.2019 granted by the State Level Environment Impact Assessment Authority (SEIAA), Jharkhand in favour of the National Buildings Construction Corporation India Limited (NBCC), the Respondent No. 5, for the All India Institute of Medical 2 Sciences (AIIMS) at villages Utimpur, Sultanpur and Rampur, Thana Deoghar, Deoghar district, Jharkhand.
2. The primary contention raised to assail the EC is that according to Form-1 submitted for EC by the Respondent No. 5, the area of the project encompasses 102.43 ha and, as per Schedule to the EIA Notification, 2006, all construction projects covering area equal to or more than 50 ha, would fall under Item 8(b) of the Schedule requiring to undergo the mandatory requirement of Stage 2 Scoping process in terms of clause 7(II) of the EIA Notification 2006. It is contended that by granting the impugned EC under Item 8(a) of the Schedule, the procedure for Scoping has been bye-passed and by basing upon multiple parts of their application, such as the Conceptual Planning, Form-1 and Form-1A. In short, according to the Appellant, EC for the project ought to have been processed as area development under Item No. 8(b) and not building construction project under Item No. 8(a) of the Schedule to the EIA Notification, 2006 as amended vide Notification dated 27.12.2014. 3
3. This being the principle objection raised against the EC, we may deal with it in light of the replies filed by the Respondents.
4. Affidavit filed on behalf of the SEAC, Jharkhand, has been affirmed by the Divisional Forest Officer, Direction & Administration, Ranchi who is also the ex-officio Member Secretary of the SEAC, Jharkhand, stating at the outset that the term of the SEIAA/SEAC, Jharkhand, had expired on 08.11.2019 and was yet to be reconstituted. It is contended that as per Form-1 submitted by the project proponent, the specifications of AIIMS, Deoghar hospital project are as under:
Built-up area : 1,16,873.93 sq.m.
Spread over area : 33.76 ha
5. It is stated that the decision of SEAC for treating it as category 8(a) project was on the basis of following categorization of building projects enlisted in the Schedule to the EIA Notification, 2006:
Project or activity Category with Condition threshold limit if any A B
8. Building/Construction projects/Area Development projects and Townships (1) (2) (3) (4) (5) 8(a) Building & Built-up Area 4 Construction > 20,000 sq.m.
Projects < 1,50,000 sq.m.
8(b) Township & Covering areas:
Area > 50 ha
Development
Projects or
Built-up area:
> 1,50,000 sq.m.
Further, as per the EIA Notification, 2006 the authority to grant EC in respect of projects falling under category B is the State Level Environment Impact Assessment Authority. Reference has been made to paragraph 4 of the EIA Notification, 2006, the relevant part of which is reproduced below:
"4. Categorization of projects and activities:-
(i)
(ii)
(iii) All projects or activities included as Category 'B' in the Schedule, ................................. will require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA)."
6. Thus as per the SEAC, the AIIMS, Deoghar "Hospital"
project with built-up area: 1,16,873.93 sq.m. spread over area: 33.76 ha for which application for EC was submitted before SEIAA, Jharkhand, would fall under Item 8(a) of the Scheduled to the EIA Notification, 2006. Thus, the said project has been appraised and EC granted by the concerned SEAC/SEIAA of the State as per paragraph 4 of the EIA Notification. Further the 5 proviso applicable to category 8(a) of the EIA Notification, 2006 would not be applicable to category 8(b).
7. According to the SEIAA, reliance placed upon MoEF&CC Notification dated 22.12.2014 by the Appellant was misconceived in as much as by Notification dated 09.06.2015, the MoEF&CC has clarified stating as under:
".......................... In case of medical universities/institutes the component of Hospitals will continue to require prior Environmental Clearance."
8. It is contended that in compliance of the order dated 23.03.2018 passed in C.A. No. 2522/18, the MoEF&CC has issued OM No. F. No. 3-150/2017-IA-III dated 03.04.2018 whereby it has been decided that the building construction and township or area development projects covered is 8(a) and 8(b) of the Schedule to the EIA Notification shall be dealt by respective SEIAA/SEAC of the State concerned.
9. Thus, as per the Respondent, it is amply clear from the Notification dated 09.06.2015 (supra) that in case of medical institute, the component of hospital will require prior EC (and not the college & hostel, etc.) and, as per OM dated 03.04.2018, it is the SEAC/SEIAA, Jharkhand 6 which is the authority to appraise such project and grant EC therefor.
10. Therefore, according to the SEIAA, the Appeal is misconceived.
11. We have also the benefit of an affidavit filed on behalf of the MoEF&CC which, apart from setting out the various provisions of the EIA Notification relevant to the matter under consideration, has supported the stand of the SEIAA set out in its affidavit alluded to above and has further reiterated "that as per the Form-1 submitted to SEIAA, Jharkhand by the project proponent, i.e., M/s. National Building Construction Corporation India Limited for granting of EC to the project in question, i.e., Development of New All India Institute of Medical Science (AIIMS), Deoghar at mauza Utimpur, Rampur and Sultanpur Block Devipur, Deoghar, Jharkhand, the total plot area is 3,37,643.9 sq.m and the total built-up is 1,16,873.93 sq.m. area respecvtively for which application for grant of EC was submitted. Taking into consideration the total built-up area, SEAC, Jharkhand recommended the project for grant of EC under Item 8(a) of the Schedule of the EIA Notification, 2006 as amended from time to time 7 and subsequently EC was granted by SEIAA, Jharkhand on 20.06.2019."
12. We have heard the Learned Counsel appearing for the parties and have carefully gone through the Memo of Appeal, the replies filed by the respondents and the documents referred to and relied upon by the respective parties as well as the written submissions filed by them . In our considered opinion, we find the Appellant to be clearly misconceived with regard to the correctness of the EC in question. In order to appreciate the factual position, it would be relevant for us to reproduce below clauses 8(a) and 8(b) of the Schedule to the EIA Notification, 2006 :-
Project or activity Category with Condition if threshold limit any A B
8. Building/Construction projects/Area Development projects and Townships (1) (2) (3) (4) (5) 8(a) Building & > 20,000 The term Construction sq.mtrs "built-up Projects and area" for the <1,50,000 purpose of sq. mtrs this of built- notification is up area the built-up or covered area on all floors put together including its basement and other service areas, which are proposed 8 in the buildings and construction projects.
Note 1. The projects or activities shall not include industrial shed, universities, college, hostel for educational institutions, but such buildings shall ensure sustainable environmental management, solid and liquid waste management, rain water harvesting and may use recycled materials such as fly ash bricks.
Note 2.
General
Condition
shall not
apply.
8(b) Township & Covering A project of
Area an area Township and
Development of > 50ha Area
Projects and or Development
built-up Projects
area covered under
<1,50,000 this item
sqm shall require
Environment
Assessment
Report and be
apprised as
Category 'B1'
Project.
Note - General
Condition
shall not
apply.
(Underlining supplied)
9
13. The core question raised by the Appellant is as to whether the project in questions falls under category 8(a) or category (b) of the Schedule to the EIA Notification 2006. According to the Appellant the project is an area development project over 102.43 ha and measures more than 1,50,000 sq.m. thereby bringing it within the purview of Item 8(b) of the Schedule to the EIA Notification dated 14.09.2006 and the process of Scoping thereunder and its attendant procedures. On the other hand, the stand of the respondents is that the project is a building construction project with a built-up area of less than 1,50,000 sq.m. along with activities like University, College, Hospital and Educational Institutions which are exempted from the General Conditions of the EIA Notification, 2006 and consequently from the requirement of the Scoping process. These are the questions which in short are relevant for consideration.
14. For the purpose of determining the question, it would be essential for us to examine the application under Form-1 submitted by the project proponent for EC before the SEIAA. In item No. (3) under the head 'Basic Information' 10 in Form-1, the entries made by the project proponent are as follows:-
FORM 1 (I) Basic Information S.No. Item Details
3. Proposed capacity / area / Total Plot Area:
length / tonnage to be 958781.22 sq m handled / command area / (236.92 acres) lease area / numbers of Facilities for wells to be drilled. which EC is applicable Plot Area (Under Hospital, Staff residence and allied services):
337643.9 sq m
Built-up Area:
1,161873.93 sq m
Facilities for
which EC is
exempted
Plot Area (Under
Academics and
Hostels):
83719.76 sq m
Built-up Area:
59367.67 sq m
15. Entry at Sl. No. 18 of the impugned EC provided for Basic Information in the table in Form-1, mentions the built-up area as 1,16,873.93 sq.m. which is less than 1,50,000 sq.m. The area over which the built up area is to come up is mentioned as 3,37,643.9 sq.m. i.e., 33.76 hectares approximately which again is less than 50 hectares.11
16. We also find that entry in Form-1 sets out the facilities for which the EC is exempted mentioning the plot area (under academics and hostels) as 83,719.76 sq.m. with built-up area of 59,367.67 sq.m. It would be amply clear that the relevant factor for consideration in activity 8(a) of the Schedule to the EIA Notification, 2006 is "built area"
for the purpose of the EC.
17. In view of the provisions of 8(a) of the Schedule, we do not find any infirmity or illegality in the process followed in the grant of the impugned EC based on application in Form-1 prescribed under the EIA Notification, 2006.
18. The submission on behalf of the Appellant that as the total area granted for the AIIMS project was 102.43 ha, it would fall under 8(b) as area development bringing within its ambit large number of other structures namely Hospital building, Ayush block, Housing Blocks, Director's residence, Night shelter & amenities and Fire station, it would require a detailed EIA studies to be undertaken as required under the EIA Notification, 2006, appears to be incorrect. The Conceptual Plan submitted as a part of Form-1A clarifies that the Hospital building, 12 Staff residence and allied facilities spread over an area 3,37,643 sq.m. of land will have the built-up area of 1,16,873.93 sq.m. Thus, the built-up area being less than 1,50,000 sq.m. area and less than 50 ha for the Hospital building component, it would fall under activity 8(a) of the Schedule-1 to the EIA Notification, 2006 requiring EC for the project from the SEAC, Jharkhand on the basis of applications in Form-1 and Form-1A prescribed therefor.
19. The contention urged on behalf of the Appellant that the project in question is one falling under item 8(b) as "Area Development Project" also does not appear to be correct. The words appearing under the column "Project or Activity" in the Schedule to the EIA Notification in respect of 8(b) reads as "Township & Area Development Projects". Thus, the activity contemplated in 8(b) unmistakably pertains to a concept of larger development and not as is being read by the Appellant. This appears to be the correct approach even according to the SEIAA and the SEAC.
20. Thus, in our considered opinion, the project cannot be termed as "Township and Area Development Project" as contemplated under clause 8(b) of the Schedule to the 13 EIA Notification, 2006 as quite obviously it appears to be a "Building and Construction Project" considering the information furnished in Form-1 under Sl. No. 3 in the table referred to earlier. The total area allotted for the project, no doubt, is 102.43 ha but the hospital and its allied activities cover only 33.76 ha with built-up area of 1,16,873.93 sq.m. For this purpose, prior EC has been obtained after undergoing the requisite processes and formalities prescribed therefor in the regulations to prevent environmental degradation. If any further buildings are to be constructed within the allotted land of 102.43 ha, naturally fresh EC will have to be obtained for the purpose according to the procedure laid down taking into consideration the impact likely to be caused thereby to the environment.
21. The other question raised by the Appellant is with regard to the EC having been granted in favour of NBCC which, according to the Appellant, is only a developer of the land engaged for the construction of the building and infrastructure necessary for the project. It is contended that the NBCC is merely an executing agency and cannot be a valid project proponent as the project comprises a 14 construction phase and an operation phase during which the project proponent is required to submit periodical compliance reports as per the conditions of the EC. However, according to the Appellant, the agreement between NBCC and the Ministry of Health and Family Welfare ("the Ministry" in short) is only valid till completion of the construction and handing over of the project. In this regard reference has been made to Clause 5.2 of the Agreement.
22. In the counter affidavit filed by the SEIAA, Jharkhand, the Respondent No. 3, it is stated that there was no error in recommending the project for grant of EC by the State Expert Appraisal Committee (SEAC), Jharkhand in favour of the NBCC which has been recognized even by the Ministry of Environment, Forest and Climate Change (MoEF&CC) as a project proponent who is eligible to be issued EC for building projects.
23. Having considered the above question, we do not find any error in this also as, in the first place, the essential requirement for a project is the necessity to obtain prior EC which, in the present case, has been fulfilled by the Builder. Secondly, it has been explained on behalf of the 15 respondents that, as per an agreement entered into between the Ministry of Health and Family Welfare, Government of India and the NBCC, the latter has been recognised as a "Executive Agency" for works related to complete Planning, Designing, Execution/Construction of buildings and Estate services, etc. Moreover, undeniably the NBCC is a Government of India, Public Sector Undertaking engaged in civil construction, real estate development projects, etc. which has been recognised by the MoEF&CC as a project proponent for grant of EC for all building projects.
24. The NBCC in its affidavit has also categorically denied the assertion of the Appellant. In addition to reiterating the stand of the SEIAA, it stated categorically that as the per Agreement dated 03.01.2019 with the Ministry, under Clause 2.1 dealing with "Implementation of the project", as per Clause 2.1.1 thereunder, the NBCC is made responsible "To get Environmental Clearance and monitor, check and ensure implementation of environmental policy aspect". Further, the NBCC has been authorised by the Ministry to apply and get the EC. The NBCC further contends that it has been fulfilling the 16 post EC compliances as and when required as per the timeline set by SEIAA.
25. We, therefore, do not find anything wrong for the project developer, NBCC, to have applied for and being granted with the EC. From the categorical averments made by the NBCC in its affidavit, it is amply clear that the Corporation is committed to comply with the terms and conditions of the EC notwithstanding the manner in which Clause 5.2 of the Agreement is sought to be interpreted by the Appellant.
26. The matter relating to lack of air modelling in relation to AAQ not having been undertaken in the EIA has been responded to in stating that all the details regarding atmospheric concentration of gases and result in heat, details of background air quality levels, impact on generation of dust, smoke, odorous fumes or other hazardous gases were submitted to SEIAA which was considered by the Authority before the EC was granted. Further, air quality detailed study is required only in cases of applications made under category 8(b) and is not required for those filed under 8(a).
17
27. The other questions raised in the Appeal being peripheral and insignificant, we do not find it necessary to deal with those. Furthermore, the EC has prescribed strict and elaborate conditions taking care of all the concerns including the question of AAQ and related questions raised by the Appellant.
28. The decisions cited at the bar by the Appellant in support of his contentions would not be applicable in the facts and circumstances of the present case and, therefore, are no assistance to the Appellant.
29. For the aforesaid reasons, we do not find any merit in the Appeal and is accordingly dismissed along with the connected I.A.
30. No order as to costs.
S.P. Wangdi, JM Saibal Dasgupta, EM 5th November, 2020 Appeal No. 08/2019/EZ avt