National Green Tribunal
Voice Of Nature Rep. By Its President vs Union Of India Rep. By Its Secretary Moef ... on 4 May, 2022
Bench: K. Ramakrishnan, Satyagopal Korlapati
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Appeal No. 01 of 2018 (SZ)
IN THE MATTER OF:
Voice of Nature
(Regn. No.21/2014) Rep. by its President,
No.4, Adhigathur Road, Vengathur Kandigai,
Manavalanagar, Thiruvallur - 602 002.
... Appellant(s)
Versus
Union of India
Rep. by its Secretary,
The Ministry of Environment, Forest & Climate Change
Jorbagh, New Delhi and Ors.
...Respondent(s)
For Appellant(s): Mr. A. Yogeshwaran.
For Respondent(s): Mrs. Me. Saraswathy for R1.
Mr. G.M. Syed Nurullah Sheriff for R2.
Mr. M.S. Krishnan, Senior Adv. along with
M/s. Bindhya Raichura represented
M/s. Sarvabhauman Associates for R3.
Mr. Thirunavukarasu for CPCB.
Date of Judgment: 04th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The Appeal is disposed of vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM Appeal No.01/2018 (SZ) 04th May 2022. Mn.
Page 1 of 23 Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Appeal No. 01 of 2018 (SZ) IN THE MATTER OF:
Voice of Nature (Regn. No.21/2014) Rep. by its President, No.4, Adhigathur Road, Vengathur Kandigai, Manavalanagar, Thiruvallur - 602 002.
... Appellant(s) Versus
1) Union of India Rep. by its Secretary, The Ministry of Environment, Forest & Climate Change Jorbagh, New Delhi.
2) State Environmental Impact Assessment Authority Rep. by its Member Secretary 3rd Floor, Panagal Maligai, No.1 Jeenis Road, Saidapet, Chennai - 600 15.
3) M/s. Asian Paints Limited Rep. by its General Manager Penta Division, B-5 - B-10, SIPCOT Industrial Complex, Kudikadu Village, Cuddalore - 607 005.
...Respondent(s) For Appellant(s): Mr. A. Yogeshwaran.
For Respondent(s): Mrs. Me. Saraswathy for R1.
Mr. G.M. Syed Nurullah Sheriff for R2.
Mr. M.S. Krishnan, Senior Adv. along with M/s. Bindhya Raichura represented M/s. Sarvabhauman Associates for R3.
Mr. Thirunavukarasu for CPCB.
Page 2 of 23 Judgment Reserved on: 04th February 2022.
Judgment Pronounced on: 04th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes/No Whether the Judgment is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The above appeal has been filed by the appellant against the grant of Environmental Clearance (EC) for the expansion of the project of the 3rd Respondent (M/s. Asian Paints Limited, Penta Division) for their unit in Cuddalore by the 2nd Respondent/State Environmental Impact Assessment Authority - Tamil Nadu (hereinafter referred to as "SEIAA - Tamil Nadu") vide their proceedings Lr.No. SEIAA/TN/F.6495/5(f)/EC- 60/2018 dated 24.04.2018.
2. It is alleged in the appeal memorandum that at the time when the application for Environmental Clearance (EC) for the expansion of the project of the 3rd Respondent unit was filed, this area has been declared as Critically Polluted Area and as per the general conditions in the Environmental Impact Assessment Notification, 2006 (hereinafter referred to as "EIA Notification, 2006") "Category - B" projects attracting Page 3 of 23 the general conditions to the notification will be deemed to be "A - Category" project and the same has to be appraised by the Ministry of Environment, Forests & Climate Change (MoEF&CC) at central level.
3. In this case, though the application for the Environmental Clearance (EC) for the expansion of the 3rd Respondent unit was filed before the 1st Respondent/MoEF&CC, after issuing the Terms of Reference (ToR) to the 3rd Respondent, the same was directed to be placed before the 2nd Respondent/SEIAA - Tamil Nadu for grant of Environmental Clearance (EC) along with the Environmental Impact Assessment Report (hereinafter referred to as "EIA Report"). Accordingly, the EIA Report was prepared and the same was submitted to the SEIAA - Tamil Nadu and the SEIAA - Tamil Nadu had granted the Environmental Clearance (EC), which according to the appellant is without jurisdiction.
4. It is also alleged in the appeal memorandum that as per the Office Memorandum, dated 13.01.2010, the 1st Respondent/MoEF&CC had imposed a moratorium for consideration of projects in 43 identified critically polluted areas including Cuddalore which is Item No.13 in the list of Critically Polluted Areas. As per the Office Memorandum dated 15.02.2011, the moratorium imposed was lifted in respect of Cuddalore and some other places.
5. According to the appellant, lifting of moratorium only means the proposals can be considered for Environmental Clearance (EC) under the EIA Notification, 2006. As per the Office Memorandum dated 28.04.2011, the MoEF&CC clarified that since general conditions to the EIA Page 4 of 23 Notification, 2006 stipulates that any project are actively specified in "B - Category" will be treated as "A - Category" if it is located in whole or in part within 10 Km from the boundary of: (i) Protected areas notified under the Wildlife (Protection) Act, 1972, (ii) Critically polluted areas as notified by the CPCB from time to time, (iii) Eco-sensitive areas as notified under Section 3 of the Environment (Protection) Act, 1986 and
(iv) interstate and international boundaries. In such cases, though moratorium was lifted, the Environmental Clearance (EC) for critically polluted areas have to be considered at central level. While granting the Environmental Clearance (EC) to the 3rd Respondent on 24.02.2014, this was considered by the MoEF&CC since all the integrated paint industries are listed at Sl. No. 5 (h) under "Category - B", however due to location of the project within 10 Kms of the critically polluted area and applicability of general condition, proposal is appraised at central level.
6. The National Green Tribunal, Southern Zone Bench in Appeal No.123 of 2016 set aside the Environmental Clearance (EC) granted by the 2nd Respondent/SEIAA - Tamil Nadu to an industry located in Cuddalore on the ground of want of jurisdiction, as it was in the critically polluted area and the SEIAA - Tamil Nadu has no jurisdiction and directed the project proponent to the approach the MoEF&CC for Environmental Clearance (EC). In spite of all these things, the 1st Respondent/MoEF&CC had wrongly delegated its powers to the 2nd Respondent/SEIAA - Tamil Nadu and the 2nd Respondent/SEIAA - Tamil Nadu issued the impugned Environmental Clearance (EC), which is not legal and on that ground, the same is liable to be set aside. Page 5 of 23
7. The 3rd Respondent filed a counter affidavit contending that the appeal is not maintainable and the same is liable to be dismissed in limine. The 3 rd Respondent is a leading paint manufacturer and has manufacturing units in several states in India including one at Cuddalore and they have established the unit in 2009, after obtaining Environmental Clearance (EC) from the MoEF&CC dated 09.07.2009. In the year 2017, the 3rd Respondent was desirous of expanding the unit at Cuddalore and in March 2017, they filed Form-I Application, Project Feasibility study and draft Terms of Reference for obtaining the Terms of Reference and Environment Clearance from the MoEF&CC for expansion of the unit. The proposal was appraised by the Expert Appraisal Committee of MoEF&CC and thereafter, vide letter dated 21.12.2017, MoEF&CC issued the Terms of Reference (TOR) to the 3rd Respondent and directed them to submit the EIA/EMP Report to the 2nd Respondent/SEIAA - Tamil Nadu for grant of Environment Clearance vide their Office Memoranda J- 11013/41/2006-IA.II (1) dated 08.10.2014. Based on the TOR issued by the MoEF&CC, they prepared the EIA report and submitted the same to the 2nd Respondent on 25.01.2018 and the same was considered by the SEAC - Tamil Nadu in their 103rd Meeting held on 24.02.2018. The SEAC
- Tamil Nadu had conducted an inspection and based on the outcome of such inspection, they took a decision to recommend the project for granting the Environmental Clearance (EC). The SEAC's Technical Team inspected the 3rd Respondent site on 03.03.2018 and submitted its report on 12.03.2018 to the SEAC - Tamil Nadu. Based on the site inspection and discussions with the 3rd Respondent, they requested the 3rd Respondent to furnish additional particulars. Accordingly, the 3rd Respondent submitted the additional particulars to SEAC's Technical Team on 12.03.2018. After Page 6 of 23 perusal of the additional particulars submitted by them, the inspection report was placed in the 104th Meeting of SEAC held on 19.03.2018 and based on the recommendations of the Technical Team, the SEAC - Tamil Nadu has decided to recommend the project for grant of Environment Clearance to the 3rd Respondent and this was placed for consideration before the 2nd Respondent in their 286th Meeting held on 16.04.2018. They also called for certain additional details which were submitted by the 3rd Respondent on 05.04.2018 and it was again considered in the 299th Meeting of the 2nd Respondent held on 24.04.2018 and they decided to issue Environmental Clearance (EC) and accordingly, the Environmental Clearance (EC) was granted evidenced by Exhibit - A, Environmental Clearance (EC). The appeal was filed only on the limited ground of jurisdiction and as per the decision of the National Green Tribunal in Dhunseri Petrochem & Tea Ltd. Vs. Union of India (2014) SCC Online NGT 670 wherein, it was held that administrative or even judicial jurisdiction in law should not be exercised where it will be futile to undertake such an exercise. Further, the application was filed by the 3rd Respondent to the MoEF&CC and it was considered at central level and by letter dated 21.12.2017, the MoEF&CC observed that "3. The project/activity is covered under category B of item 6(b) 'Synthetic organic chemicals industry' of the Schedule to the Environmental Impact Assessment Notification, 2006 and requires appraisal at State level. However, due to applicability of general condition (critically polluted area within 5 km), the project was appraised at central level by the sectoral Expect Appraisal Committee (EAC) in the Ministry." and it is thereafter, they directed the 3rd Respondent to prepare the EIA Report and submit the same before the 2nd Respondent/SEIAA - Tamil Nadu for consideration and accordingly, the SEIAA - Tamil Nadu Page 7 of 23 considered the same and issued the Environmental Clearance (EC). As per Office Memorandum dated 17.09.2013 of the MoEF&CC, Cuddalore area is no more a Critically Polluted Area. The Environmental Clearance (EC) granted by the 2nd Respondent is perfectly legal and that does not require any interference. So, they prayed for dismissal of the appeal.
8. The 2nd Respondent/SEIAA - Tamil Nadu filed counter contending that the 3rd Respondent has applied to the MoEF&CC, Government of India for grant of ToR for the proposed expansion in production of pentaerythritol from 560 MTM to 730 MTM (Powder and Solution form) and Sodium Formate from 336 MTM to 480 MTM (Powder and Solution form) at Plot No. B5 - B10, SIPCOT Industrial Complex, Cuddalore, Tamil Nadu. In the Office Memorandum No. J-11013/5/2010 - IA.II (I), Government of India, dated 15.02.2011, in respect of certain industrial clusters including Cuddalore Industrial Area, based on recommendation of the CPCB, the moratorium on consideration of a project for Environmental Clearance was lifted on 15.02.2011. In response to the application, Terms of Reference (ToR) was issued vide File No. J- 11011/181/2017-IA-II (I) dated: 21.12.2017 by MoEF&CC, GoI & public hearing was exempted as per Section 7(i), (iii) Stage (3), Para (i) (b) of EIA Notification, 2006 and request to submit the final EIA/ EMP report prepared by the consultants accredited with the Quality Counsel of India/ National Accreditation Board of Education and Training (QCI/NABET) to the SEIAA - Tamil Nadu for grant of Environment Clearance. In the said ToR in Para (3), it was stated that "The project activity is covered under Category - B of Item 6(b), synthetic organic chemicals industry' of the schedule to the Environment Impact Assessment Notification, Page 8 of 23 2006 and requires appraisal at State Level. However, due to applicability of general condition (critically polluted area within 5 kms), the project was appraised at central level by the Sectoral Expert Appraisal Committee (EAC) in the Ministry". Further, in the Terms of Reference dated 22.12.2017 in Paragraph 8, it was stated that "You are required to submit the final EIA/ EMP report prepared by the consultants accredited with the Quality Council of India/National Accreditation Board of Education and Training (QCI/NABET), to the State Environment Impact Assessment Authority (SEIAA) for grant of Environmental Clearance, within 3 years as per the Ministry's OM No.J- 11013/41/2006-IA.II(I) dated 08.10.2014". Based on the ToR issued by the MoEF&CC, the project proponent prepared the Environment Impact Assessment (EIA) report and submitted the same to SEIAA-Tamil Nadu on 25.01.2018 and the same was placed in the 103rd Meeting of the State Expert Appraisal committee (SEAC), Tamil Nadu held on 24.02.2018 and they decided to make an inspection and based on the outcome of the inspection, SEAC - Tamil Nadu will take a decision regarding the grant of Environmental Clearance (EC) to the industry. The Technical Team inspected the site on 03.03.2018 and submitted the report on 12.03.2018. The Technical Team, based on the site inspection and discussion with the proponent at the site, requested the project proponent to furnish additional particulars/proposals. Accordingly, the project proponent has submitted the additional particulars/proposals to the Technical Team on 12.03.2018. After perusal of the additional particulars/proposals, the inspection report was placed in the 104th Meeting of SEAC - Tamil Nadu held on 19.03.2018. Based on the recommendations of the Technical Team, the SEAC - Tamil Nadu decided to recommend the project for grant of Environmental Clearance to SEIAA - Tamil Nadu, subject to certain Page 9 of 23 conditions. The proposal was placed before the SEIAA - Tamil Nadu in their 286th Meeting held on 16.04.2018. They called for certain additional details and the same were submitted by the project proponent on 05.04.2018 and after consideration of the same, the SEIAA - Tamil Nadu in their 291st Meeting held on 24.04.2018, as Item No.291-01, decided to issue the Environmental Clearance (EC) and the same was issued vide their Letter No. SEIAA/TN/ F.6495/5(f)/EC-60/2018 dated 24.04.2018 and public hearing was exempted in this matter. So, according to them, the Environmental Clearance (EC) granted is perfectly legal and they prayed for dismissal of the appeal.
9. The 1st Respondent/MoEF&CC filed counter reiterated the procedure for issuance of Environmental Clearance (EC) under the EIA Notification, 2006 and also the categorization and the authorities to which the applications will have to be filed. They further contended that the 3rd Respondent had approached the 1st Respondent for grant of ToR vide their Application dated 27.04.2017 with proposal No. IA/TN/IND2/63895/2017. The proposal was for expansion of Synthetic organic chemicals, Pentaerythritol from 560 TPM to 730 TPM and Sodium Formate from 336 MTM to 480 MTM. This was covered under "B - Category" as per the EIA Notification, 2006 and it has to be appraised at State level. There was a temporary moratorium imposed for consideration of the projects for Environmental Clearance which were located in critically polluted areas identified by the Central Pollution Control Board vide their Office Memorandum dated 13.01.2010. Later, the Ministry vide Office Memorandum dated 20.05.2016 and 25.11.2016 had lifted the moratorium for the industrial clusters as Comprehensive Page 10 of 23 Environmental Pollution Index (CEPI) Score was less than 70. Accordingly, the proposal of ToR considered by the Ministry and issued the Terms of Reference to M/s Asian Paints Limited dated 21.12.2017 with a condition that the Final EIA/EMP report will have to be prepared by the consultants accredited with the Quality Council of India/ National Accreditation Board of Education and Training (QCI/NABET) and submit before the State Environment Impact Assessment Authority (SEIAA), Tamil Nadu for grant of Environmental Clearance within 3 years vide their Letter dated 21.12.2017 evidenced by Annexure - R1 (1). It is on that basis, the SEIAA - Tamil Nadu had granted the Environmental Clearance (EC) which is perfectly legal. So, there is no merit in the appeal and they prayed for dismissal of the appeal.
10. As directed by this Tribunal, the Central Pollution Control Board (CPCB) has filed a memo where this Tribunal had directed them to clarify as to whether the Cuddalore has been delisted from the list of Critically Polluted Areas to some other polluted status and on that basis, they have submitted as follows:-
a. During 2009, CPCB evaluated CEPI Score in which Cuddalore Industrial Area was identified as Critically Polluted Area (CPA).
b. Vide Office Memorandum dated 13.01.2010, the MoEF&CC imposed the Moratorium for CPAs is which Cuddalore Industrial Area was included.
c. Vide Office Memorandum dated 15.02.2011, the MoEF&CC lifted the Moratorium for Cuddalore Industrial Area.Page 11 of 23
d. In 2018, CPCB conducted assessment of Cuddalore Industrial Area, as per the re-assessment study, Cuddalore Industrial Area comes under Severely Polluted Area (SPA).
e. The CEPI Scores evolved in different years for Cuddalore as follows:-
Year 2009 2011 2013 2018
CEPI Score 77.45 78.41 70.12 62.56
f. The details of CEPI Scores of 100 Polluted Industrial Areas (PIAs), assessed during 2018, has been submitted to MoEF&CC for appropriate action/decision and the matter is pending with them.
11. They further mentioned that 2018 Assessment Report of the CPCB was submitted in one of the matter pending disposal before the Principal Bench of National Green Tribunal, New Delhi as O.A. No.1038 of 2018, based on the orders of the Tribunal dated 10.07.2019. Clarification has to be obtained from the MoEF&CC and the CPCB is not involved in this activity of issuing Environmental Clearance (EC).
12. Heard the learned counsel appearing for the appellant, the learned Senior Advocate appearing for the project proponent and also the learned counsel appearing for the MoEF&CC and SEIAA - Tamil Nadu.
13. Mr. A. Yogeshwaran, the learned counsel who is appearing for the appellant argued that it was a critically polluted area and as per the general conditions, "B - Category" projects will have to be appraised by the MoEF&CC and as such, the appraisal made by the 2nd Page 12 of 23 Respondent/SEIAA - Tamil Nadu is not legal and the same is liable to be set aside on that ground. Further, the critically polluted status was not delisted in respect of Cuddalore by any of the authorities and till it is delisted, it will continue to be a critically polluted area and the action of the 1st Respondent in relegating their powers to the SEIAA - Tamil Nadu to consider the project, as it is a "B - Category" project in the circumstances is not correct.
14. The learned counsel for the appellant relied on the decision of this Tribunal in Appeal No.123 of 2016 (SZ) whereby, the Environmental Clearance (EC) granted by the SEIAA in a critically polluted area was set aside on the ground of want of jurisdiction. The Miscellaneous Application [M.A. 92 of 2016 (SZ) in Appeal No.123 of 2016 (SZ)] filed by M/s. Strides Shasun Pharmaceuticals Limited, Cuddalore for modification of the order dated 03.05.2016 by the project proponent was also dismissed by this Tribunal by order dated 18.07.2016. So, according to the learned counsel for the appellant, the Environmental Clearance (EC) granted is not proper and the same is liable to be set aside.
15. On the other hand, Mr. M.S. Krishnan, the learned Senior Advocate appearing for the project proponent argued that they cannot be blamed for the act of the MoEF&CC in referring the matter to the SEIAA - Tamil Nadu and they have filed the application before the MoEF&CC and it was appraised at central level by them for the purpose of issuance of ToR by the Sectoral Expert Appraisal Committee and it is on the basis of the directions issued by them along with the ToR that the project was to be appraised by the SEIAA - Tamil Nadu. Further, at the time when the proposal was considered by the MoEF&CC, the critically polluted status Page 13 of 23 of Cuddalore has been changed from critically polluted to severely polluted based on the CEPI Score prepared by the CPCB and accordingly, since it has been shifted from critically polluted, they were justified in sending the matter to SEIAA - Tamil Nadu for appraisal. Even if it is set aside and directed the MoEF&CC to consider the same, in view of the changed circumstances of CEPI Score, the same procedure will be adopted by the MoEF&CC and it is only a futile exercise and the project has been commissioned and it is functioning on the expanded capacity.
16. The learned counsel appearing for the MoEF&CC and the SEIAA - Tamil Nadu also argued on the same line in which it was argued by the learned Senior Advocate appearing for the project proponent.
17. The learned Senior Advocate appearing for the project proponent and the learned counsel for the MoEF&CC relied on the decision of this Tribunal in O.A. No.103 of 2016 (SZ) [Puducherry Environment Protection Association Rep. by its Secretary K. Irisappan, Koodapakkam Vs. Union of India & Ors.] dated 18.10.2016 wherein, this Tribunal had observed that "When the moratorium is lifted and the reassessment of CEPI score in respect of Cuddalore is not found to be above 70 score, we are of the considered view that there is no purpose in contending still that the area should continue to be CPA and the general conditions should prevail".
18. We have considered the pleadings and submissions made by both sides. Page 14 of 23
19. The points that arise for consideration are:-
(i) Whether the Environmental Clearance (EC) granted to the 3rd Respondent by the 2nd Respondent/SEIAA - Tamil Nadu is liable to be set aside for the reasons stated by the appellant in the appeal memorandum and submissions made by the learned counsel for the appellant at the time of hearing?
(ii) What is the nature of directions, if any, to be issued in this matter?
(iii) Relief and costs.
POINTS:-
20. It is an admitted fact that during 2009, as per the evaluation made by the CPCB, this area is declared as critically polluted area. Further, as per the EIA Notification, 2006 regarding the application of the general conditions referred to as „Note‟ under the Schedule attached, "B - Category" projects have to be considered as "A - Category" projects and the same has to be appraised at central level which as reads as follows:-
"Note:-
General Condition (GC):
Any project or activity specified in Category „B‟ will be treated as Category A, if located in whole or in part within 10 km from the boundary of:
(i) Protected Areas notified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as identified by the Central Pollution Control Board from time to time, (iii) Eco-sensitive areas as notified under section 3 of the Environment (Protection) Act, 1986, such as, Mahabaleshwar Panchgani, Page 15 of 23 Matheran, Pachmarhi, Dahanu, Doon Valley, and (iv) inter-State boundaries and international boundaries:
Provided that the requirement regarding distance of 10 km of the inter- State boundaries can be reduced or completely done away with by an agreement between the respective States or U.Ts sharing the common boundary in case the activity does not fall within 10 kilometres of the areas mentioned at item (i), (ii) and (iii) above."
21. So, as per the EIA Notification, 2006, the Environmental Clearance (EC) for any project either new or expansion even "B - Category" projects have to be treated as "A - Category" projects and that will have to be appraised at the central level.
22. It is also an admitted fact that during 2011, a moratorium was imposed for consideration of establishment of new projects or expansion of any existing projects in a critically polluted area, as per the Office Memorandum dated 13.01.2010. It is also an admitted fact that Cuddalore area is one of the critically polluted area mentioned in Office Memorandum dated 13.01.2010.
23. Further, it is also an admitted fact that by Office Memorandum dated 15.02.2011, moratorium was lifted in respect of certain areas which includes the SIPCOT Industrial Estate, Cuddalore, as the CEPI Score has come down making it to a lesser category than the critically polluted category. As per Office Memorandum dated 28.04.2011, the MoEF&CC has clarified that "B - Category" will be treated as "A - Category", if it is located within 10 Km from the protected area notified under the Wildlife (Protection) Act, 1972, (ii) Critically polluted areas as notified by the CPCB from time to time, (iii) Notified eco-sensitive area, (iv) Inter-state and international boundaries. As per the Office Memorandum dated Page 16 of 23 17.09.2013, the MoEF&CC clearly stated that even a reference to SEIAA in earlier Office Memorandums (which is contrary to EIA Notification and subsequent clarification) was deleted. It is also an admitted fact that the 3rd Respondent had applied for expansion of their project, in fact, to the MoEF&CC for issuance of ToR along with their Form - I Application and Pre-Feasibility Report. It is also an admitted fact that this proposal was appraised by the EAC of the MoEF&CC and they have recommended for issuance of ToR and it is on that basis, the ToR was issued to the 3 rd Respondent.
24. It is also seen from the file of the MoEF&CC that there was a discussion regarding coming down of CEPI Score below 70 and there was a direction for consideration of "B - Category" project by the SEIAA - Tamil Nadu itself. It is also seen from the CEPI Score during 2017 of the CPCB in respect of Cuddalore is less than 70 and it will be treated as a critically polluted area, on the basis of the guidelines of the CPCB, if it is more than
70. So, it has come down from the critically polluted area to some other status.
25. Further, after the recommendation for issuing ToR by the EAC at Central level, the MoEF&CC had decided to issue ToR and issued a letter to the 3rd Respondent vide their Proceedings F.No.J-11011/181/2017-IA-II (I) of the MoEF&CC dated 21.12.2017 which reads as follows:-
"F.No.J-11011/181 /2017-IA-II(I) Government of India Ministry of Environment, Forest and Climate Change (IA Division) Indira Paryavaran Bhawan Jor Bagh Road, N Delhi - 3 Dated: 21st December, 2017 Page 17 of 23 To, M/s Asian Paints Limited, Penta division, B-5 to B-10, Sipcot industrial complex, Kudikadu village, Cuddalore - 607005 (Tamil Nadu) Sub: Expansion of Synthetic Organic Chemicals (Pentaerythritol and Sodium Formate) at SIPCOT Industrial Complex, Kudikadu Village, District Cuddalore (Tamil Nadu) by M/s Asian Paints Limited - Terms of Reference - reg.
Sir, This refers to your proposal No. IA/TN/IND2/63895/2017 dated 27th April, 2017 on the subject matter, along with the project documents including Form-1, Pre-feasibility Report and the draft 'Terms of Reference' as per the Environmental Impact Assessment Notification, 2006.
2. The proposal is for expansion of Synthetic organic chemicals, Pentaerythritol from 560 TPM to 730 TPM and Sodium Formate from 336 MTM to 480 MTM (in solid and solution form) by M/s Asian Paints Limited at SIPCOT Industrial Complex, Kudikadu Village, District Cuddalore (Tamil Nadu).
3. The project/activity is covered under category B of item 6(b) 'Synthetic organic chemicals industry' of the Schedule to the Environmental impact Assessment Notification, 2006, and requires appraisal at State level. However, due to applicability of general condition (critically polluted area within 5 km), the project was appraised at central level by the sectoral Expert Appraisal Committee (EAC) in the Ministry.
4. Existing land area is 29.20 acres, No additional land is required for the proposed expansion. Greenbelt is to be developed in an area of 33% of the total project area. The estimated project cost for the proposed expansion is Rs.4.80 crores. Total capital cost earmarked for environmental pollution control measures is Rs.461 lakhs and the recurring cost (operation and maintenance) will be about Rs.215 lakhs per annum.
5. There are no National Parks, Wildlife Sanctuaries, Biosphere Reserves, Tiger/Elephant Reserves, Wildlife Corridors, Rivers etc within 10 km from the project site. Uppanaru Lake is at a distance a distance of 0.5 km in the East.
6. Draft Terms of Reference (ToR) were discussed and finalised during 24th Expert Appraisal Committee (industry-2) meeting held during 14-16 June, 2017.
The Committee has recommended the standard ToR applicable to such projects (refer Ministry's Website) for preparation of EINEMP report, along with the additional terms and conditions as under:-
(i) One month base line data to be submitted
(ii) ESR plan c 5% shall be prepared in consultation with nearby villagers and submitted.
(iii) Layout plan earmarking space for development of 10 m green belt around plant periphery to-be submitted.
7. Based on recommendations of the EAC, the Ministry of Environment, Forest and Climate Change, hereby accords the standard terms of reference to the project, along with the additional terms and conditions as mentioned above, for preparation of EIN EMP report. Public hearing is exempted under the provisions as per pars 7(i) III Stage (3)
(i) (b) of the EIA notification, 2006.
8. You are required to submit the final EIA/EMP report prepared by the consultants accredited with the Quality Council of India/National Accreditation Board of Education and Training (QCIINABET), to the State Environment Impact Assessment Authority (SEIAA) for grant of environmental clearance, within 3 years as per this Ministry's OM No. J11013/41/2006-1A.E1 (I) dated 8th October, 2014.
(S. K. Srivast ava) Scientist E Page 18 of 23 Copy to:
1. The APCCF, Regional Office (SEZ), 1st and 2" Floor, Handloom Export Promotion Council, Cathedral Garden Road, Nungarnbakkam, Chennai - 34
2. The Member Secretary, Tamil Nadu Pollution Control Board, 76, Mount Salai, Guindy, Chennai - 32"
26. So, it is clear from this that it is on that basis, the matter was relegated to the SEIAA - Tamil Nadu and on the basis of the above letter, the 3rd Respondent had prepared the final EIA Report and submitted the proposal to the SEIAA - Tamil Nadu and after detailed consideration, the SEIAA - Tamil Nadu issued the Environmental Clearance (EC). Except the ground that the SEIAA - Tamil Nadu had no jurisdiction, no other grounds were raised by the appellant in the appeal memorandum. So, the only question to be considered is whether the SEIAA - Tamil Nadu has jurisdiction to grant Environmental Clearance (EC) or not.
27. The learned counsel for the appellant had relied on the decision reported in Appeal No.123 of 2016 (Puducherry Environment Protection Association Vs. Union of India & Ors.) of National Green Tribunal, Southern Zone dated 01.08.2016 and also another decision of the Principal Bench of National Green Tribunal in Appeal No.18 of 2011 (V. Srinivasan Vs. Union of India & Ors.) dated 24.02.2012.
28. In the first decision, the Tribunal held that the SEIAA has no jurisdiction to grant Environmental Clearance (EC), as it falls under critically polluted areas and the SEIAA has no jurisdiction to entertain the same and the Environmental Clearance (EC) was set aside on that ground. The second decision related to the EIA Consultants gives information on the basis of Page 19 of 23 the State Pollution Control Board‟s report regarding the distance from the protected areas for want of jurisdiction.
29. There is no dispute regarding the proposition laid down in those decisions to the extent that if the authorities have no jurisdiction to entertain on the basis of certain notification or law, then exercise of that power by that authority is illegal and any relief granted by that authority is vitiated for want of jurisdiction and the same is liable to set aside.
30. There is another decision of the National Green Tribunal, Southern Zone in O.A. No.103 of 2016 (SZ) [Puducherry Environment Protection Association Vs. Union of India & Ors.] which was filed by the Puducherry Environment Protection Association and in Para (36) of the Judgment, it was observed as follows:-
"36. A reading of the said Official Memorandum issued by the Government of India shows that the CEPI score which was revised in the year 2013 has increased above 70 only in respect of eight clusters mentioned in paragraph 4 of the Official Memorandum dated 17.9.2013 which means that regarding the remaining areas in respect of which moratorium was lifted, the CEPI score is not above 70. As stated above, it is solely based on the CEPI score given by the CPCB, the area has been categorised as CPA and therefore from the date when Cuddalore (Tamil Nadu) in respect of which moratorium has been lifted on 15.2.2011, the necessary corollary can be that at least after 17.9.2013 the CEPI score in respect of Cuddalore (Tamil Nadu) is not above 70. It is true that the CPCB has to monitor continuously in respect of 43 original CPA to find out whether CEPI score increases or decreases, depending on which the Government of India takes a policy decision regarding lifting of moratorium. It is only in that regard in the communication dated 23.10.2015 the CPCB has asked for nomination of a responsible officer for the purpose of undertaking assessment and periodical review and monitoring implementation of action plan formulated in respect of 43 CPAs. By communication dated
9.10.2015 the MoEF & CC has nominated officer for assessment and review of CEPI score. That does not mean that any assessment made in February, 2013 becomes invalid It is true that there can be another assessment based on monitoring and review by the CPCB and if CEPI score increases in respect of Page 20 of 23 any area, including Cuddalore, on the recommendation by the CPCB, the Government of Indian can always reimpose moratorium. As long as the CEPI score regarding Cuddalore (Tamil Nadu) in respect of which moratorium has been lifted, appears to have not exceeded 70 score in the reassessment done regarding CEPI score in February - April, 2013, one cannot presume that Cuddalore continues to be a CPA. When the moratorium is lifted and the reassessment of CEPI score in respect of Cuddalore is not found to be above 70 score, we are of the considered view that there is no purpose in contending still that the area should continue to be CPA and the general conditions should prevail."
31. So, there was a judicial pronouncement by this Tribunal that even during 2016 itself when the case was disposed of, to the effect that the CEPI Status in respect of Cuddalore has come down below 70 and there is no necessity to retain the condition that the general conditions should apply to Cuddalore.
32. The same counsel who is appearing in this matter has appeared for the applicant in that case and that decision was not challenged. Further, this decision was rendered after the Appeal No.123 of 2016 (Puducherry Environment Protection Association, Kuppakkam Vs. Union of India & Ors.) filed by the same counsel was disposed of.
33. So, in view of the latest decision of the Tribunal, the dictum laid down in Appeal No.123 of 2016 (SZ) is of no consequences. Even as per the statement given by the CPCB, the status of the Cuddalore has been changed from the Critically Polluted to Severely Polluted and they have submitted the report to the MoEF&CC to consider the status of these areas on that basis.
Page 21 of 23
34. It is true that it was not delisted but at the same time, when the moratorium was lifted, there is an implication that the moratorium was lifted only because the critically polluted status has been reduced to some other status. The entire critically polluted areas were not identified for the purpose of lifting the moratorium, but admittedly, Cuddalore was one among them. It was on that basis, the decision in O.A. No.103 of 2016 (SZ) was rendered by this Tribunal as well.
35. So, it was under these circumstances, when the critically polluted status has been changed and the CEPI Score has come down below 70 at the time when the 3rd Respondent filed an application before the MoEF&CC for Environmental Clearance (EC) and issuance of ToR for their expansion, the MoEF&CC, after considering the circumstances, appraised the project at Central level for the purpose of issuance of ToR and necessary ToR was issued on the basis of the recommendations made by the EAC at Central level and thereafter, directed the SEIAA to consider the application and also directed the project proponent to prepare the final EIA Report on the basis of the ToR and submit the report before the SEIAA - Tamil Nadu for consideration. It is on that basis, the project proponent submitted the final EIA Report before the SEIAA - Tamil Nadu and the SEIAA - Tamil Nadu had considered the project in detail, as seen from the documents that whenever they required some details, the same were obtained and the Technical Team of the SEAC - Tamil Nadu has inspected the area and recommended for issuance of Environmental Clearance (EC) and it is on that basis, the SEAC - Tamil Nadu had recommended the project and the SEIAA- Tamil Nadu had issued the impugned Environmental Clearance (EC). Page 22 of 23
36. So, under such circumstances, we do not find any merit in the appeal that the SEIAA - Tamil Nadu had no jurisdiction to entertain the same and on that ground, the Environmental Clearance (EC) will have to be set aside.
37. The points are answered accordingly.
38. In the result, the appeal fails and the same is hereby dismissed.
39. Considering the circumstances, parties are directed to bear their respective costs in the appeal.
40. The Registry is directed to communicate this order to the MoEF&CC and the SEIAA - Tamil Nadu to take back the records, if any, produced by them.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM Appeal No.01/2018 (SZ) 04th May 2022. Mn.
Page 23 of 23