National Green Tribunal
Meenava Thanthai K.R.Selvaraj Kumar ... vs Tamil Nadu State Environment Impact ... on 28 January, 2025
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
Item No.1:-
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Tuesday, the 28th day of January 2025.
[Through Physical Hearing (Hybrid Option)]
Original Application No.07 of 2022 (SZ)
IN THE MATTER OF
Meenava Thanthai K.R. Selvaraj Kumar
Meenavar Nala Sangam
(Registered under section 10 of the Tamil Nadu
Societies Act, in Sl. No.205 of 2015 dated
26.06.2015)
Represented by its President,
M.R. Thiyagarajan,
S/o. Late C. Rajalingam,
Office at No.48, East Madha Church Street,
Royapuram, Chennai - 600 013.
...Applicant(s)
Versus
1) Tamil Nadu State Environment Impact Assessment
Authority
Through the Chairman,
3rd Floor, Panagal Maaligai,
No.1, Jeenis Road, Saidapet,
Chennai - 600 015.
2) Tamil Nadu Pollution Control Board
Through the Chairman
No.76, Mount Salai,
Guindy, Chennai - 600 032.
3) The District Collector
Thiruvallur District
Master Plan Complex NH 205,
Chennai - Tiruttani Highway,
Thiruvallur, Tamil Nadu - 602 001.
4) ACS Medical College and Hospital
Through the President
Numbal Village,
Ponnamallee Taluk, Thiruvallur District,
Tamil Nadu - 600 077.
...Respondent(s)
Page 1 of 19
For Applicant(s): Mr. G. Stanly Hebzon Singh and
Mr. K. Mageshwaran.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1.
Mr. S. Sai Sathya Jith for R2.
Dr. D. Shanmuganathan for R3.
Mr. B. Radhakrishnan &
Mr. K. Sivasubramaniyan for R4.
Judgment Reserved on: 30th September, 2024.
CORAM:
HON'BLE Smt. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGEMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The applicant, which is a registered society founded in order to work towards the upliftment and improvement of conditions of life, has expressed his concern about the environmental violations committed by the 4th Respondent viz., M/s. ACS Medical College and Hospital, which is established and commenced their operation without obtaining requisite prior Environmental Clearance and Consent from the authorities.
2. The applicant has alleged that the 4th Respondent has violated several environmental regulations, causing harm to the environment and public health. In the application, the applicant has contended that the 4th Respondent had commenced construction and operation of the medical college and hospital in a built-up area of 78,103.58 Sq. Meters in a land area of 1,19,263.71 Sq. Meters in Survey Nos.35/1, 2, 3, 63/2, 64/1A and 1B2 in Numbal Village, Ponnamallee Taluk, Thiruvallur District, without prior Environmental Clearance from the State Environmental Impact Assessment Authority - Tamil Nadu (for short 'SEIAA - Tamil Nadu').
Page 2 of 193. It is alleged that the operation of the 4th Respondent falls under 'B' Category of Item 8 (a) - 'Building and Construction Projects' of the EIA Notification, wherein the prior Environmental Clearance is mandatory before the commencement of the construction of the medical college and hospital. The 4th Respondent has not obtained the mandatory Consent to Establish and Consent to Operate under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. It is further alleged that the 4th Respondent failed to obtain authorization letter under the provisions of the Bio Medical Waste Management Rules, 2016 for the proper segregation, storage and disposal of biomedical waste.
4. The applicant alleges that unscientific disposal and dumping of biomedical waste would cause severe health hazards to the people in the vicinity. The unscientific, unauthorized and undesignated segregation and disposal of biomedical waste by the 4th Respondent causes a great threat to the general public, doctors, nurses and health care workers.
5. The other allegation is that there is no effective ETP to treat the untreated effluents generated from the hospital and medical college and the same is being discharged into the public drainage. The next allegation levelled against the 4th Respondent is regarding the illegal extraction of the groundwater for the operation of the medical college and hospital. It is alleged that the Project Proponent had illegally sunk several bore wells in the project site for the medical college and hospital. The 4th Respondent has failed to obtain permission from the Central Groundwater Authority/ State Groundwater Authority prior to the extraction of the groundwater from the project site.
6. The applicant also has sent a representation in this regard dated 18.11.2021 to the authorities concerned, highlighting the non-compliance of the environmental norms by the 4th Respondent. However, no action has been taken by the authorities for the violation of the provisions of the EIA Notification, Environment (Protection) Act, 1986, Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.
Page 3 of 197. So, on the above grounds, the applicant seeks directions to the authorities to take stringent action against the 4th Respondent for continuing illegal, unauthorized and unscientific operation of the medical college and hospital, which is operating without Environmental Clearance and Consent and to demolish the buildings and pay the environmental compensation.
8. In the report dated 06.02.2023 of the SEIAA - Tamil Nadu, it is stated that the 4th Respondent had applied for seeking the Terms of Reference (ToR) under the violation category for the medical college and hospital, which was placed in the State Expert Appraisal Committee - Tamil Nadu (for short 'SEAC - Tamil Nadu') Meeting held on 11.06.2019. As the Project Proponent had already commenced the construction activity, it was to be considered under the violation category. The SEAC - Tamil Nadu noted that the Project Proponent had applied before the MoEF&CC under the violation category notification dated 14.03.2017. The SEAC - Tamil Nadu had directed the Project Proponent to revise the application considering the total built-up area. The proposal was again considered on 24.08.2020. Based on the presentation made by the Project Proponent, it was decided to recommend the proposal to the SEIAA - Tamil Nadu for considering the issuance of ToR in three parts as annexed for conducting the EIA Study. The revised proposal in Form - I with the existing built-up area of 78,103.58 Sq. Meters, as committed in the meeting, were to be uploaded in the Parivesh portal before placing the subject to the SEIAA - Tamil Nadu. The Project Proponent had submitted additional details to the SEIAA - Tamil Nadu on 05.11.2020, which was placed in the meeting held on 11.11.2020. After considering the same, the SEIAA - Tamil Nadu decided to accept the recommendation of the SEAC - Tamil Nadu and to grant the Standard ToR for undertaking the EIA and preparation of EMP with specific ToR for assessment of ecological damage, remediation plan, and natural and community resources augmentation plan. The Project Proponent also submitted a detailed EIA Report dated 13.10.2022 based on the ToR issued by the SEIAA - Tamil Nadu.
Page 4 of 199. Meanwhile, the above Original Application was filed before this Tribunal. This Tribunal had constituted a Joint Committee to inspect the project site and submit a report. Later, the subject was placed in the SEIAA - Tamil Nadu Meeting held on 31.10.2022 and the SEIAA - Tamil Nadu had noted that the SEAC - Tamil Nadu in its Meeting held on 13.10.2022 had furnished its recommendation for granting Environmental Clearance subject to the conditions stated therein. The SEIAA - Tamil Nadu decided to inform the project proponent to furnish the particulars as recommended by the SEAC - Tamil Nadu in its Meeting held on 13.10.2022, which includes the amount prescribed for ecological remediation, natural resource augmentation and community resource augmentation, which would come to Rs.121.72 Lakhs and the same shall be spent for ecological damage remediation.
10. Before delving on the legal aspects, it would be appropriate to be clear on the facts.
11. The 4th Respondent, which is M/s. ACS Medical College and Hospital affiliated with Dr. M.G.R. Educational and Research Institute (Deemed to be University), had taken lands on lease and obtained Consent to Establish from the TNPCB on 14.02.2008. The construction of the buildings for the medical college was started in the year 2008. In the meanwhile, permission to start the medical college was issued by the Ministry of Health and Family Welfare on 04.07.2008. On 25.03.2009, the application in Form - I was submitted for Environmental Clearance to the 2nd Respondent/ SEIAA - Tamil Nadu. The SEIAA - Tamil Nadu had sought for additional particulars on 27.07.2009. Thereafter, in July 2010, a request was made to make a presentation of the project through the Environmental Consultant. Again, additional particulars were required. In February 2012, once again the 4th Respondent requested to make a presentation of the project through the Environmental Consultant. In September 2012, the term of the SEAC - Tamil Nadu was completed and the appraisal for the proposal by the newly constituted SEAC was to be in the forthcoming meeting. In the meanwhile, it was specifically brought to the knowledge of the Project Proponent by the SEIAA Page 5 of 19
- Tamil Nadu vide letter dated 13.12.2012 that any construction activity towards the project implementation without obtaining prior Environmental Clearance is a cognizable offence under Section 19 of the Environment (Protection) Act, 1986 and is liable to punishment for the contravention of the provisions of the said Act and Rules. The Project Proponent was specifically instructed not to commence any activity other than cleaning the site, fencing the site and putting up temporary structures for accommodation of guards along with basic facilities like toilet and water supply made as temporary arrangements.
12. In the meanwhile, the MoEF&CC has issued a notification vide S.O.3252 (E) dated 22.12.2014, making certain amendments in Category (8) relating to 'Building and Construction projects' and 'Area Development and Township projects' and sub-items 8 (a) and 8 (b). As per the said notification, the term built-up area above 20,000 Sq. Meters and less than 1,50,000 Sq. Meters fall under 'B' Category and the project activities shall not include industrial sheds, schools, colleges and hostels for educational institutions, but such buildings shall ensure sustainable environmental management, etc. Even presuming that the above S.O. granted an exemption, it did not extend to the medical college and hospital.
13. Another O.M. issued by the MoEF&CC with a clarification on exemption to hospital component, building project was issued on 09.06.2015. The said O.M. was issued based on the representation from various educational institutions regarding issuing clarification on the status of universities and other educational institutions. The matter has been examined in the Ministry and as per the S.O. 3252 (E) dated 22.12.2014 exemptions to buildings of educational institution were granted. In the case of a medical university/institute, it was clarified that the component of the hospital will continue to require prior Environmental Clearance. Yet another Notification in S.O. 804 (E) dated 14.03.2017 was issued relating to the norms fixed for the violation category of the projects. This enabled issuance of ToR for those Project Proponents, who had started the work on site, expanded the production beyond the limit of Environmental Clearance or change in product mix without obtaining prior Page 6 of 19 Environmental Clearance under the EIA Notification, 2006 to apply within a period of 60 days in the violation category. On 19.06.2017, the 1st Respondent intimated that as per Notification dated 14.03.2017, the application under the violation category could not be processed by the SEIAA - Tamil Nadu and instructed the Project Proponent to apply to the MoEF&CC for the Environmental Clearance.
14. To be noted is that the first application seeking Environmental Clearance by the Project Proponent was made on 25.03.2009 before the SEIAA - Tamil Nadu and the same is not pursued. The SEIAA - Tamil Nadu on 28.03.2018 had sent a communication pursuant to the direction issued by the Hon'ble High Court on 14.03.2018 in W.P. No.11189 of 2017 that the Project Proponents, who had not submitted the proposal within six months window period, are required to submit the proposal within 30 days before the SEIAA. Accordingly, the Project Proponent seems to have applied online vide SIA/TN/NCP/24686/2018 on 12.04.2018. The Project Proponent also had made an application in Form - I, Form - IA and ToR along with necessary enclosures seeking Environmental Clearance for the hospital.
15. While so, vide Notification S.O. 5733 dated 14.11.2018, delegating the powers to the local bodies/ such as Municipalities, Development Authorities, District Panchayats, the case may be, to ensure the compliance of environmental conditions in respect of the building or construction projects with a built-up area of more than 20,000 Sq. Meters and less than 1,50,000 Sq. Meters for industrial sheds, educational institutions, hostels and hospitals was issued. On the very next day i.e. 15.11.2018, by Notification S.O. 5736 (E), an exemption was given to both educational institution buildings and hospitals having above 50,000 Sq. Meters and less than 1,50,000 Sq. Meters of building.
16. On 22.01.2019, the TNPCB issued a show cause notice for violation of the consent order conditions on the specific allegation that the Project Proponent had commissioned the hospital and the same is under operation without obtaining Page 7 of 19 Consent to Operate from the Board and the Project Proponent also had commenced the operation without obtaining Environmental Clearance as required under the EIA Notification. In reply to the above show cause notice, the Project Proponent had stated that several guidelines issued by the MoEF&CC from 2010 to 2014 with less clarity on the operation of the medical college and hospital had restricted them from obtaining Environmental Clearance and Consent to Operate. The Project Proponent further stated that only in the O.M. dated 09.06.2015, it was directed to obtain Environmental Clearance towards the operation of the hospital component of the medical college. Based on the above, the 4th Respondent had submitted an application before the SEIAA - Tamil Nadu for obtaining Environmental Clearance in 2016.
17. Subsequently, the Project Proponent applied under the violation category, which is also under process. However, the Project Proponent had admitted that they did not apply for the Consent to Operate. In the meanwhile, the 1st Respondent had sought for additional details from the Project Proponent, including the date of commencement of construction of different blocks with details and also the present stage of construction at the site. Additional details were submitted by the Project Proponent on 02.05.2019. On 23.11.2020, the ToR was issued for the preparation of the EIA Report, ecological damage, etc. as a violation category. The Project Proponent had completed the EIA Study and complied with the conditions of the ToR and submitted the report to the SEIAA - Tami Nadu on 23.08.2021. The additional particulars were also submitted on 16.10.2021.
18. In the meanwhile, once again the TNPCB issued a show cause notice on 24.01.2022 for violation of the provisions of the Bio Medical Waste Management Rules, 2016 both under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. The Project Proponent also replied on 28.01.2022 stating that the agreement was entered with M/s. Tamil Nadu Waste Management Limited for collection, transportation, treatment and disposal of biomedical waste generated by the institution. The agreement with the above said agency is renewed year after year and the Page 8 of 19 said agency is periodically removing the biomedical waste from the institution. The additional reply was also given on 10.02.2022. In the meanwhile, the SEIAA - Tamil Nadu proposed to inspect the site and communicate the same vide letter dated 21.04.2022.
19. On 19.05.2022, the O.M. was issued by the MoEF&CC stating that the exemption provided for educational institutions vide Ministry's Notification S.O.3252 (E) dated 22.12.2024 shall be applicable to all educational institutions covered under the definition of educational institution, as mentioned in Noise Pollution (Regulation and Control) Rules, 2000 and these educational institutions are directed to strictly implement the guidelines issued vide O.M. dated 09.06.2015 to ensure sustainable environment management. Another O.M. dated 28.06.2022 was issued on the applicability of the EIA Notification, 2006 for educational institutions.
20. On 13.10.2022, in the SEAC - Tamil Nadu meeting, an inspection committee was formed and inspected and the observation of the sub-committee was taken into consideration. On 31.10.2022, in the 565th Meeting of the SEIAA - Tamil Nadu, it was recommended that for the ecological remediation, natural resource augmentation and community resource augmentation plan a sum of Rs.21.72 Lakhs in the form of a Bank Guarantee is to be paid to the TNPCB by the 4th Respondent. The proposed CER amount of Rs.21.72 Lakhs shall be spent as committed for issuance of the Environmental Clearance and submitted a proof of action taken by the State under Section 19 of the Environment (Protection) Act, 1986.
21. On 31.01.2023, pending the above Original Application, a representation was submitted by the 4th Respondent to the 1st Respondent about the applicability of the violation category so far considered by the 1st Respondent and non-consideration of exemption of educational and hospital building project under Schedule (8) of the EIA Notification and its amendment and the retrospective validity and recommendation of the SEAC - Tamil Nadu about various remedial measures in view of the violation category, which is not at all attracted Page 9 of 19 according to the 4th Respondent. Thereafter, the 4th Respondent submitted a representation to the SEIAA - Tamil Nadu on 17.05.2023, after which, a reply was sent by the 1st Respondent dated 12.07.2023. The 4th Respondent had represented that the Notification of the MoEF&CC vide S.O. 5733 (E) dated 14.11.2018 and S.O. 5736 (E) dated 15.11.2018, exempt the hospital up to 1,50,000 Sq. Meters from obtaining Environmental Clearance and the said exemption will have a retrospective effect and the stay issued to the above-mentioned notification by the Hon'ble High Court of Delhi will not extend to the State of Tamil Nadu. In response to the same, the SEIAA - Tamil Nadu has replied that as far as the retrospective effect of amendment of Act, Rules, etc., the Hon'ble Supreme Court of India, vide Order dated 06.09.2021 in Assistant Excise Commissioner, Kottayam's case & Ors. Vs. Esthappan Cherian & Anr. [C.A. No.5815 of 2009], observed that, "There is profusion of judicial authority on the proposition that a rule of law cannot be construed as retrospective unless it expresses a clear or manifest intention, to the contrary ... ... ...
... ... ... Another equally important principle applies: in the absence of express statutory authorization, delegated legislation in the form of rules or regulations, cannot operate retrospectively".
22. In this case, the impugned notifications do not mention about the notifications having a retrospective effect. Even if one concedes that the notifications will have a retrospective effect, then the contents of the O.M. issued by the MoEF&CC vide dated 19.05.2015 removing the exemption to hospitals will also have the retrospective effect which would nullify the case of the 4th Respondent.
23. Regarding the stay order issued by the Hon'ble High Court of Delhi and its jurisdiction over the other states, the SEIAA - Tamil Nadu has pointed out that the National Green Tribunal which has jurisdiction over the entire country also has stayed the operation. Therefore, the plea of the 4 th Respondent could not be considered. Further, in the 641st Meeting dated 27th and 28th July 2023, the authority reviewed the contents of the representation in detail. The authority noted that the Project Page 10 of 19 Proponent has not complied with any of the conditions indicated in the 565th Authority meeting. Hence, the authority, after detailed deliberation, decided that the Member Secretary, SEIAA
- Tamil Nadu shall address the TNPCB to issue a show cause notice to the Project Proponent for violating the Environment (Protection) Act, 1986.
24. The Joint Committee which was constituted by this Tribunal to file a report based on the inspection was filed on 02.03.2022. The Joint Committee had inspected the subject premises on 22.02.2022 and observed that the 4th Respondent Medical College and Hospital was functioning in the existing buildings without obtaining Environmental Clearance and Consent to Operate both under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 from the TNPCB. The 4 th Respondent had obtained planning permission from the CMDA on 26.05.2016 for the construction of the college block, girls hostel, nurse quarters, staff quarters, hospital block I and II, canteen shed, mortuary block, residential quarters, auditorium-ground floor, boys hostel, crèche, dental block and other structures with a total built-up area of 75,636.51 Sq. Meters but the application for the Environmental Clearance applied before the SEIAA - Tamil Nadu was for a built-up area of 78,103.58 Sq. Meters.
25. The Joint Committee also noticed that the additional construction of three blocks at various stages was found under construction in addition to the existing facilities without obtaining Environmental Clearance. The Consent to Establish issued by the TNPCB dated 14.02.2008 was valid up to 13.02.2010 for carrying out the construction of hospital to treat patients with 350 beds, inpatient of 250 Nos./day and outpatients and institution of 600 Nos. per day. The TNPCB issued a show cause notice dated 22.01.2019 for operating the hospital and medical college without obtaining Consent to Operate. The TNPCB also had issued directions to obtain Environmental Clearance within a period of one month and to obtain Consent to Operate within a period of two months. Additional directions were issued to be complied with and reported on or before 31.01.2022 viz., (1) Health Care Facility shall obtain Environmental Clearance under Page 11 of 19 the EIA Notification, (2) To obtain Consent to Operate within three months and (3) To ensure that no treated or untreated sewage and trade effluent shall gain access to the nearby land/water sources at any point. The TNPCB also issued a show cause notice under Section 5 of the Environment (Protection) Act, 1986 for recovery of the environmental compensation for non-compliance with the provisions of the Biomedical Waste Management Rules, 2016.
26. The Joint Committee further noticed that two STPs provided for the treatment of sewage were not operated effectively since no sludge was found in the sludge dry beds. The treated sewage was utilized on land for gardening. The biomedical waste generated from the 4th Respondent Health Care Facility was stored in a separate closed shed and disposed of through the common biomedical waste treatment facility of M/s. Tamil Nadu Waste Management Limited. The 4th Respondent also made an agreement with the above agency which was valid up to 31.03.2022 for the disposal of the biomedical waste. However, the 4th Respondent had not obtained authorization under the Bio Medical Waste Management Rules. The Joint Committee has further found that the lands on which constructions were made are patta lands. In the 'A' Register pertaining to the same and also in the FMB, there is no mention of a pond, lake, channels, water course poramboke, etc. However, in the Village Map, in Sy. No.35, in the north-eastern part, the pond details are noted. But there is no sub-division of the said survey number.
27. Accordingly, the Joint Committee calculated the environmental compensation for the combined activities of the 4 th Respondent without appropriate approval at Rs.3,38,40,000/-. The above said environmental compensation was calculated by the Joint Committee, after the Board had issued a show cause notice under Section 5 of the Environment (Protection) Act, 1986 dated 24.01.2022.
28. The independent report of the TNPCB is also filed dated 21.03.2023. The TNPCB also has found that the 4th Respondent was functioning without Consent to Operate and Page 12 of 19 Environmental Clearance. The STP and ETP provided on the premises were not properly maintained. The institution generates more than 450 KLD of sewage and trade effluent and there is no MLSS aeration tank and seems that groundwater is being filled and the same was found aerated. It was also noticed that sewage and trade effluents from the treatment plant are discharged directly to the back side of the treatment plant on open land for percolation as well as into the storm water drain within the premises. The 4th Respondent had not applied and obtained authorization under the Bio Medical Waste Management Rules. The TNPCB has found that there is an additional construction of three blocks i.e., college building, residential quarters, etc. was in progress without obtaining the necessary consent of the Board and without obtaining Environmental Clearance.
29. The point that arises for determination is:
Whether the 4th Respondent has obtained all clearances/ approvals for running the medical college, hostel and hospital?
30. Admittedly, the 4th Respondent had not obtained Environmental Clearance or Consent before the commencement of construction of the project, which exceeds the built-up area of 20,000 Sq. Meters under Category 8 (a) of the EIA Notification, 2006. This non-compliance places the project under the 'violation' category, requiring additional obligation, including payment of environmental compensation.
31. The main contention of the learned counsel for the 4th Respondent is that the buildings constructed for educational institutions such as schools, colleges and hostels are exempted from obtaining a prior Environmental Clearance, placing his reliance on S.O. 3252 (E) dated 22.12.2014. The above S.O. granted an exemption for educational institutions, including schools, colleges and hostels only. It did not exempt the hospital component which requires prior Environmental Clearance, as the exemption did not specifically mention the applicability to hospital facilities.
Page 13 of 1932. In this regard, the MoEF&CC issued an O.M. dated 09.06.2015, confirming and clarifying that the exemption granted to educational institutions under S.O. 3252 (E) dated 22.12.2014 did not extend to hospital facilities associated with medical colleges. This clarification affirms that the 4th Respondent was obligated to obtain a prior Environmental Clearance for its hospital operations. Therefore, the continued functioning of the 4th Respondent hospital without a prior Environmental Clearance is a direct violation of the EIA Notification, 2006.
33. In the meanwhile, a notification viz., S.O. 804 (E) dated 14.03.2017 was issued, which provided a mechanism for regularizing the projects that had commenced the construction without obtaining prior Environmental Clearance by applying under the 'violation' category. The 4th Respondent took advantage of this and filed an application under the notification of S.O. 804 (E) dated 14.03.2017, thus, acknowledging its non- compliance.
34. Meanwhile, the MoEF&CC has issued a notification vide S.O. 5733 (E) dated 14.11.2018, delegating the powers to the Local Bodies such as Municipalities, Development Authorities and District Panchayats to ensure compliance with environmental conditions for building construction projects. This applies specifically to the project with built-up area exceeding 20,000 Sq. Meters but less than 1,50,000 Sq. Meters. The categories covered under this delegation included industrial sheds, educational institutions, hospitals and hostels.
35. On the very next day, another S.O. 5736 (E) dated 15.11.2018 was issued by the MoEF&CC, granting an exemption from obtaining prior Environmental Clearance for both educational institutions, buildings and hospitals with a built-up area exceeding 50,000 Sq. Meters but less than 1,50,000 Sq. Meters.
36. While the notification mentioned above exempted the educational institutions, buildings and hospitals with a built-up area between 50,000 Sq. Meters and 1,50,000 Sq. Meters from Page 14 of 19 obtaining prior Environmental Clearance, will not have retrospective application. Admittedly, the construction and operational activities for the hospital component of the 4 th Respondent commenced well before the issuance of the above notification in 2008. In other words, the 4th Respondent had commenced the construction and its operation when the prior Environmental Clearance was mandatory under the EIA Notification, 2006. To be noted is that the 4th Respondent had obtained CTE from the TNPCB on 14.02.2008 and application in Form - I was submitted for Environmental Clearance on 25.03.2009 before the SEIAA - Tamil Nadu.
37. As per Assistant Excise Commissioner, Kottayam's case, referred supra, retrospective applicability is not presumed unless specifically mentioned in the notification, which is not the case here. Therefore, the notification does not exempt the 4 th Respondent from obtaining Environmental Clearance for the hospital component of their project and their continued operation without requisite approvals constitutes a violation of environmental regulations.
38. On 07.07.2021, the MoEF&CC issued another Office Memorandum which provided a Standard Operating Procedure (SOP) for identifying and handling violation cases under the EIA Notification, 2006. This SOP was issued in compliance with the order of the National Green Tribunal, Western Zone Bench in Appeal No.34 of 2020 (WZ) [Tanaji B. Gambhire Vs. Chief Secretary Government of Maharashtra & Ors.] dated 24.05.2021.
39. The O.Ms. dated 07.07.2021 and 28.01.2022 introduced the procedural changes for processing violation category cases. However, their operations were stayed by the Hon'ble Supreme Court of India in Vanashakti Vs. Union of India & Ors. [W.P. (C) No.1394 of 2023] dated 02.01.2024. Subsequently, on 02.02.2024, the Hon'ble Supreme Court in the same case clarified its order passed on 02.01.2024, which is usefully extracted below:-
"5. We clarify that our orders dated 02nd January, 2024 would not come in the way of the component Page 15 of 19 authorities in considering the proposals for modifications/alterations in the Environmental Clearances if area of such projects had any valid Environmental Clearances prior to 07th July, 2021.
6. Needles to state that such applications for modification/alteration would be considered by the competent authorities strictly in accordance with law as it existed prior to 07th July, 2021."
40. There was another challenge to the O.M. dated 07.07.2021 before the Hon'ble High Court of Madras at Madurai Bench in W.P. (MD) No.11757 of 2021 [Fatima Vs. Union of India]. The Hon'ble High Court, on 15.07.2021, granted an interim stay, on the ground that the concept of ex-post facto approval is alien to environment jurisprudence and it is an anathema to the EIA Notification, 2006. In its final order dated 30.08.2024, the Hon'ble High Court of Madras held as follows:
"29.Ergo, the sequitur is,
(i) captioned three W.P.s, namely W.P. (MD) Nos.8866 of 2021, 11757 of 2021 and W.P. No.18829 of 2021 are allowed in the aforesaid manner, impugned OMs dated 19.02.2021 and 07.07.2021 issued by MoEF are quashed / set aside but prospectively albeit with a window to three ongoing / completed projects as set out elsewhere supra in this order. Consequently, connected Writ Miscellaneous Petitions thereat are closed. There shall be no order as to costs;
(ii) Contempt Petition No.56 of 2022 is closed and the respondent is purged of contempt vide Rule of contempt issued on 08.03.2022. Consequently, connected Sub application is closed."
41. Aggrieved by the aforementioned final order, the writ petitioner therein preferred an appeal before the Hon'ble Supreme Court. In Special Leave Petition (Civil) Diary No.49103 of 2024 [Fatima Vs. Union of India], the Hon'ble Supreme Court passed an interim order on 06.01.2025, which is reproduced below:-
"We direct that if any applications are pending for grant of ex post facto clearances on the basis of OMs dated 19th February, 2021 and 7th July, 2021, the same shall be processed. However, final order granting approval shall not be passed till further orders."Page 16 of 19
42. Therefore, the application as per O.M. dated 07.07.2021 can be availed to the 4th Respondent subject to 'Fatima case' referred supra.
43. To be noted is that in Original Application No.65 of 2019 (WZ) [Ajay Jayvantrao Bhosale Vs. Union of India & Ors.] dated 29.11.2024, the National Green Tribunal of Western Zone Bench, has held that the Project Proponent had applied for ex-post facto clearance prior to the date of judgment passed by the Hon'ble High Court of Madras as well as prior to the date of order passed by the Hon'ble Supreme Court staying the operation of the O.M. dated 07.07.2021. Therefore, till these judgments/orders were pronounced, position of law would be taken to be that the SOP provided under O.M. dated 07.07.2021 was in force as per the order of the Hon'ble Supreme Court delivered in Electro Steel's case (Civil Appeal Nos. 7576- 7577 of 2021).
44. The O.M. dated 07.07.2021 is now before the Hon'ble Supreme Court in the cases of Vanashakti and Fatima, which have been clubbed together. However, the subsequent order in the Fatima case, which permits processing of the application but restricts the passing of final orders, shall prevail. This is because it is the later order and arises from an SLP originating from the State of Tamil Nadu, which falls within the jurisdiction of the Madras High Court, the same jurisdiction as that of the 4th Respondent.
45. Now coming to the facts of the present case, admittedly, the 4th Respondent has made an application to the 1st Respondent under the 'violation' category only on 31.01.2023, seeking exemption for an educational and hospital building project under Schedule (8) of the EIA Notification, 2006. The Hon'ble High Court of Madras at Madurai Bench initially stayed the said Office Memorandum on 15.07.2021.
46. In the instant case, the project is within the jurisdiction of the Madras High Court, as the 4th Respondent - Educational Institution and Hospital is situated within the jurisdiction of the Madras High Court. Therefore, the stay granted Page 17 of 19 in W.P. (MD) No.11757 of 2021 was applicable. Furthermore, the subsequent final judgment of the Madras High Court on 30.08.2024, has quashed the O.M. dated 07.07.2021.
47. In light of the above facts, the applicable regulatory framework, and judicial precedents, it is clear that the Project Proponent, i.e., the 4th Respondent, cannot rely on the O.M. dated 07.07.2021 to regularize their non-compliance. However, based on the Supreme Court's order in the Fatima case, the application can be processed provided it is otherwise in order. It is important to note that no final orders can be passed on the application at this stage.
48. The fact remains that though the Project Proponent has been in operation since 2008, having obtained the Consent to Establish from the Tamil Nadu Pollution Control Board on 14.02.2008, did not care to obtain prior Environmental Clearance though had applied for it on 25.03.2009. So, from the date of commencement of the operation, the Project Proponent is a violator.
49. Therefore, the MoEF&CC/SEIAA - Tamil Nadu is directed to:
i. Compute the number of days of violation in operating the medical college, hostel and hospital without obtaining Environmental Clearance. ii. Compute the number of days of violation concerning air and water pollution, the cost of sewage treatment, and disposal of biomedical waste, etc. iii. Arrive at the environmental compensation payable by the 4th Respondent.
iv. Recover the same from the 4th Respondent in the manner known to law.
v. Use the recovered sum for the effective implementation of the remediation plan and natural and community resource augmentation, which shall be implemented within six (6) months.Page 18 of 19
50. The Hon'ble Supreme Court, in its interim order dated 06.01.2025 in Fatima Vs. Union of India, has directed that pending applications for ex-post facto clearances based on the O.M.s dated 19.02.2021 and 07.07.2021 may be processed, but no final order granting such approval shall be passed until further orders. In light of this, the Project Proponent's application for ex- post facto clearance, if in order, can only be processed by the authorities, but no final order can be issued.
51. We make it clear that until Environmental Clearance is obtained, the Project Proponent shall be deemed as a violator. If the 4th Respondent discontinues its operations till the decision of the Hon'ble Supreme Court, it would be deemed as a violator till the date of order of the Hon'ble Supreme Court i.e. 06.01.2025. The authorities are thus directed to compute and recover the compensation from the 4th Respondent. In any case, Environmental Clearance cannot be granted to the 4th Respondent until the entire compensation amount, as calculated by the authorities, is recovered.
52. In light of the above facts, the Original Application [O.A. No.07 of 2022 (SZ)] is disposed of with the directions indicated above.
Sd/-
Smt. Justice Pushpa Sathyanarayana, JM Sd/-
Dr. Satyagopal Korlapati, EM Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.07/2022 (SZ) 28th January, 2025. Mn.
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