National Green Tribunal
Subash Mohapatra vs State Of Odisha on 23 February, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 54/2020/EZ
IN THE MATTER OF:
Mr. Subash Mohapatra,
S/o Late Jalandhara Mohapatra,
Aged about 44 years,
R/o At-Khandual Vihar, PO-Sarakantar,
P.S.-Khandagiri, Bhuabaneswar,
Khurdha - 751019,
....Applicant(s)
Versus
1. State of Odisha,
Through Principal Secretary,
General Administration Department and P.G. Department,
Secretariat Building, Bhubaneswar,
Pin - 751001,
2. Secretary, Forest and Environment Department,
Govt. of Odisha,
Secretariat Building, Bhubaneswar,
District-Khurdha - 751001,
3. The Vice-Chairman,
Bhubaneswar Development Authority,
Akash Shova Buidling, Sachivalaya Marg,
Bhubaneswar - 751001,
4. District Collector, Khurdha,
At/P.O.: Khurdha, District-Khurdha,
Pin - 752055,
5. The Member Secretary,
State Environment Impact Assessment Authority, Odisha,
Unit IX, Bhubaneswar,
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6. Member Secretary, Odisha State Pollution Control Board,
Paribesh Bhawan, A/118, Nilakantha Nagar,
Unit-VIII, Bhubaneswar,
Pin - 751012,
7. Union of India,
Through Secretary,
Ministry of Environment, Forest and Climate Change,
Indira Paryavaran Bhawan, Jorbagh Road,
New Delhi - 110003,
8. M/s Sum Hospital,
Through Founder President, Prof. (Dr.) Manojranjan Nayak,
K-8, Kalinganagar, Ghatikia, Bhubaneswar,
Pin - 751030,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Sankar Prasad Pani, Advocate
COUNSEL FOR RESPONDENTS :
Mr. S. K. Nayak, AGA for R-1, 2 & 4,
Mr. Pronoy Mohanty, Advocate a/w Mr. Pranab Kumar Pasayat,
Advocate for R-3,
Mr. Gora Chand Roy Choudhury, Advocate for R-5&7,
Mr. Dipanjan Ghosh, Advocate for R-6,
Mr. Sarthak Nayak, Advocate a/w Mr. Gaurav Gupta, Advocate
for R-8,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JIDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- 8th February, 2022 Pronounce On:- 23rd February, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes 2 JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) The Applicant has filed this Original Application, alleging illegal and unauthorized construction of Hospital and other buildings having been made by the Respondent No.8, M/s Sum Hospital, over an area of 4,47,395 square meters. The allegation also is that the Bhubaneswar Development Authority has approved only 31,448 square meters vide its letter dated 16.11.2019 whereas the Respondent No.8 has built up his Hospital (G+4) building which is 61,376 square meters and it is mentioned in the letter that the building shall be used exclusively for Hospital and ancillary purposes.
It is also stated that there are 13 Research Centres, 38 Research Labs, 197 e-Enabled Classrooms, 1400 State of the art auditorium along with 4 other auditoria and fully Wi-Fi Campus. The allegation further is that on a complaint being made to the Ministry of Environment, Forest and Climate Change (Respondent No.7 herein), the Eastern Regional Office at Bhubaneswar of the Ministry of Environment, Forest and Climate Change, inspected the Institute of Medical Science and SUM Hospital of Respondent No.8 on 25.02.2020 and it was found that though the Hospital was initially started in an area of 7.21 acres allotted by the Bhubaneswar Development Authority in 2004 but subsequently the area was increased to 16.65 acres which was regularized by the Bhubaneswar Development Authority vide its letter dated 3 12.08.2010. It is also stated that the current built-up area of the Hospital building is 61,376 square meters. A Consent to Establish was granted on 11.08.2016 initially for 500 beds whereas Consent to Operate was granted on 12.08.2016 for 1000 beds and authorization under the Biomedical Waste Management Rules, 2016 was granted on 16.08.2016 for 1000 beds. The Committee has also noted that the majority part of the building is being used for Hospital purpose. It is also stated that the Odisha State Pollution Control Board (OSPCB) has also issued authorization under Bio- Medical Waste Management Rules 2016 vide letter no. 4235/SPCB/Authoization (Biomedical waste) dated 29.04.2019 to M/s IMS and SUM Hospital, Bhubaneswar an occupier of the facility at K8 Kalinganagar, Bhubaneswar at M/s Sani Clean Pvt. Ltd. for 1400 no. of beds and is valid upto 31.03.2020.
2. A counter-affidavit dated 03.08.2021 has been filed on behalf of the Respondent No.1, State Respondent, Govt. of Odisha, stating that the land was allotted by the Government to the Siksha 'O' Anusandhan which is recorded as 'Patita' and 'Pahada' in the Record of Rights published in 1961-62 and are 'Kisam non-forest' and, therefore, do not attract the restrictive provisions of the Forest (Conservation) Act, 1980.
3. A counter-affidavit dated 01.10.2021 has also been filed on behalf of the Respondent No.4, Collector, Khordha District, to the same effect.
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4. A counter-affidavit dated 10.11.2021 has been filed on behalf of the Respondent No.3, Bhubaneswar Development Authority, wherein it is stated that the first permission was granted in favour of the Sikhya 'O' Anusandhan University for a built-up area of 5,17,582 square feet (48,084.94 square meters). In 2008, the Bhubaneswar Development Authority formulated a scheme of regularization for unauthorized/deviated constructions within the Bhubaneswar Development Authority Plan Area notified in the Gazette (Extra Ordinary) on 31.12.2008. Accordingly, a total built- up area of 6,90,582 square feet (64,157.17 square meters) was approved regularizing 1,72,800 square feet (16,053.6 square meters) of deviated area on payment of Rs. 88,37,450/- (Rupees Eighty Eight Lakhs Thirty Seven Thousand Four Hundred Fifty only) as compounding fee vide permission letter dated 12.08.2010. It is emphatically stated in the affidavit that when the permission was first granted in favour of the Sikhsha 'O' Anusandhan University, the Ministry of Environment, Forest and Climate Change Notification dated 22.12.2014 was not in force. It is also stated that since the additional area of 1,72,800 square feet (16,053.6 square meters) was less than 20,000 square meters, Environmental Clearance was neither required nor insisted upon by the Bhubaneswar Development Authority at the time of granting regularization approval. On behalf of the Bhubaneswar Development Authority, it is further stated that the Síksha O' Anusandhan University submitted an application on 05.01.2019 for regularization of deviated unauthorized construction undertaken in 5 respect of the Plot Nos. F-1, F-2, F-3, C-1, C-2, C-3, C-4 & C-5 over an area of 19.714 decimal in Mouza-Ghatikia which was regularized by the Bhubaneswar Development Authority on a realization payment of Rs. 6,33,28,680/- (Rupees Six Crores Thirty Three Lakhs Twenty Eight Thousand Six Hundred Eighty) vide its letter dated 16.11.2019. It is also stated that since the total built-up area as regularized by the Bhubaneswar Development Authority is less than 1,50,000 square meters, Environmental Clearance was not insisted upon in view of the Ministry of Environment, Forest and Climate Change Notification dated 22.12.2014.
5. A reply dated 22.09.2021 has been filed on behalf of the Respondent No.7, Ministry of Environment, Forest and Climate Change, bringing on record the Ministry of Environment, Forest and Climate Change Notification No. 3252(E) dated 22.12.2014, and it is stated that industrial sheds, schools, college, hostel for educational institution, under this notification are exempted from obtaining Environmental Clearance under the provisions of the EIA Notification 22.12.2014 subject to sustainable environment management. The reply affidavit also refers to an Office Memorandum dated 09.06.2015 clarifying that hospitals shall continue to require prior Environmental Clearance and the said Office Memorandum does not bifurcate the building as 'clinical' and 'non-clinical'.
6. In terms of the order of the Tribunal dated 13.01.2021, the Joint Committee constituted by the Tribunal, has submitted its 6 Report. The observation of the Joint Committee along with the conclusion is reproduced herein below:-
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7. The Respondent No.7 was directed to file its reply to the Joint Committee's Report by this Tribunal in its order dated 10.08.2021 which refers to the Joint Committee's Report dated 09.04.2021 filed as Annexure-A (page no. 36 of the paper book). It would be relevant 9 to reproduce the remarks/point-wise reply of the Ministry of Environment, Forest and Climate Change which reads as under:- 10 11 12 13 14
8. An affidavit dated 03.02.2022 has been filed on behalf of the Respondent No.8, M/s IMS & SUM Hospital, refuting the allegations in the Original Application and bringing on record a letter of the Deputy Director General of Forests (Central) dated 11.01.2021 filed 15 as Annexure-1 (page no. 182 of the paper book) to that affidavit, seeking a clarification from the Ministry of Environment, Forest and Climate Change to the effect that if both 'Clinical Area' s well as 'Non-Clinical Area' are situated in the same building premises of the Hospital as in the present case, whether an Environmental Clearance is required for the project or not necessary for it. The Respondent No.8 has also filed as Annexure-2 (page no. 184 of the paper book) a letter of Ministry of Environment, Forest and Climate Change dated 22.03.2021 which is a clarification wherein it is stated that the above matter has been examined by the Ministry of Environment, Forest and Climate Change and the following is clarified:-
(i) If there is no clear demarcation between
hospital;/clinical and non-hospital/clinical
components then the project with Built-up area (BUA) greater than or equal to threshold of 20,000 sqm, as stipulated under item 8 of the Schedule to EIA Notification 2006, shall attract those provisions and require prior Environmental Clearance under the EIA Notification, 2006.
(ii) Otherwise, OM dated 9th June, 2015 shall apply."
9. The Respondent No.8 has also filed the Joint Committee's Report dated 09.04.2021 as Annexure-3, which has already been reproduced in para 6 of the judgment.
10. The Respondent No.8 has also filed as Annexure-V an 'Addendum' dated 12.01.2020 issued by the Bhubaneswar Development Authority, wherein it is mentioned in the remarks 16 column that the total clinical area is 13,543 square meters and total teaching area is 47,833 square meters.
The case of the Respondent No.8 is that they had applied for Environmental Clearance which was granted by the State Environment Impact Assessment Authority (SEIAA), Odisha vide its letter No. 216613/44-MIS/01-2021 dated 11.01.2022. This document was not filed with the affidavit of the Respondent No.8 whereupon the Tribunal had directed the said Respondent to file such document and, therefore, another affidavit dated 03.02.2022 was filed bringing on record the said document, i.e., Environmental Clearance dated 11.01.2022 as Annexure-A4.
11. We have heard the learned Counsel for the parties and perused the documents on record.
12. The submission of Mr. Sankar Prasad Pani, learned Counsel for the Applicant is that over the period of years the Respondent No.8 has unauthorisedly and illegally expanded the area of the Hospital without obtaining Environmental Clearance.
13. Mr. Pani has referred to the Joint Committee Report dated 09.04.2021 and submitted that as per EIA Notification of 14.09.2006, obtaining of Environmental Clearance was mandatory but the Respondent No.8 has made constructions over an area of 63,487 square meters without obtaining Environmental Clearance.
14. Mr. Pani has also referred to Annexure-VIII (page no.55 of the paper book) which is an extract of State Expert Appraisal 17 Committee (SEAC) meeting held on 14.11.2013 and he submits that a perusal of the said document would show that the total project area is 74218.18885 square meters; the break-up of which is that 68012.05 square meters was constructed prior to EIA Notification dated 14.09.2006 and the extra proposed built-up area of 10,072.52 square meters is against future expansion for which the Respondent No.8 would have to obtain Environmental Clearance. Learned Counsel has also referred to the document filed as Annexure-IX (page 57 of the paper book in support of his submissions.)
15. However, what we have noticed from the affidavit of the Bhubaneswar Development Authority, Respondent No.3, is that when permission was first granted in favour of the Siksha 'O' Anusandhan Hospital, the EIA Notification of 2006 was not in force. The additional construction of the area was 16,053.6 square meters but since this area was less than 20,000 square meters, Environmental Clearance was not insisted upon by the SEIAA, Odisha, at the time of granting regularization by the Bhubaneswar Development Authority. The case of the Bhubaneswar Development Authority is that the total built-up area regularized by it was less than 1,50,000 square meters and, therefore, as per EIA Notification dated 14.09.2006, the Environmental Clearance was not insisted upon.
16. We may refer to the Ministry of Environment, Forest and Climate Change Notification dated 22.12.2014 whereby 18 amendments were introduced in the EIA Notification of 2006 by adding sub-items 8 (a) and 8 (b) in the entries therein which read as under:-
17. A perusal of this Notification dated 22.12.2014 would show that for building and construction projects the built-up area for purposes of requirement of Environmental Clearance would be where the area is more than 20,000 square meters and less than 1,50,000 square meters but the 'Note-1' thereof provides that the projects or activities shall not include industrial shed, school, college, hostel for educational institution, 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.
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18. The Ministry of Environment, Forest and Climate Change thereafter has issued a further Office Memorandum dated 09.06.2015 which has clarified the previous Ministry of Environment Forest and Climate Change Gazette Notification dated 22.12.2014 and which reads as under:-
"The Ministry is in receipt of representation from various educational institutions regarding issuing clarification on status of universities, and other educational institutions. The matter has been further examined in the Ministry and it is clarified that the Notification No. S.O. 3252 (E) dated 22.12.2014 provides exemption to buildings of educational institutions including universities form obtaining prior Environment Clearance under the provisions of the EIA Notification, 2006 subject to sustainable environmental management. In case of medical universities/institutes the component of Hospitals will continue to require prior Environment Clearance."
19. A perusal of this Notification of 09.06.2015 shows that the Ministry of Environment, Forest and Climate Change has provided for exemption of buildings of educational institutions including universities from obtaining prior Environmental Clearance under the provisions of the EIA Notification 2006 subject to sustainable environmental management which was provided in the MoEF&CC Notification dated 22.12.2014 but the Notification of 09.06.2015 further mentions that 'in case of medical universities/institutes the component of Hospitals will continue to require prior Environmental Clearance.' 20
20. The remarks of the Ministry of Environment, Forest and Climate Change with regard to the observations of the Joint Committee Report dated 09.04.2021 assume significance since it not only reiterates the provisions of the Ministry of Environment, Forest and Climate Change Notification dated 22.12.2014 and 09.05.2015 but further states that since no prior Environmental Clearance had been taken for 68,012 square meters, any addition shall require prior Environmental Clearance. However, in the case of the Siksha 'O' Anusandhan University, Respondent No.8, it was noticed that Environmental Clearance was applied for by the University concerned in 2013 but the State Expert Appraisal Committee (SEAC) which was competent to grant the Environmental Clearance had, at that time, observed that Environmental Clearance is not required.
21. The Respondent No.7, Ministry of Environment, Forest and Climate Change however, also states that State Expert Appraisal Committee (SEAC) appears to have incorrectly interpreted the requirements of the MoEF&CC Notification. It is also stated by the Respondent No.7 in its reply to the Joint Committee Report that Hospitals are not exempted from the requirement of obtaining prior Environmental Clearance. The built-up area for the Hospital and ancillary facility is 1,37,706.78 square meters and the construction of 63,487.591 square meters (December 2014) would require prior Environmental Clearance as Hospitals are not exempted from the requirement of obtaining prior Environmental Clearance. 21
22. The Respondent No.7, Ministry of Environment, Forest and Climate Change, further noted that the Office Memorandum dated 09.06.2015 does not bifurcate a Hospital building between 'clinical' and 'non-clinical and exemption is provided only for educational institutions upto 1,50,000 square meters under the EIA Notification of 22.12.2014.
23. The stand of the Respondent No.7, Ministry of Environment, Forest and Climate Change, is that any area with regard to Hospital/Residential which was build up after September, 2006 would constitute as expansion of the existing project and would require prior Environmental Clearance.
24. The present case has certain peculiar facts. It is the admitted stand of the Bhubaneswar Development Authority that for additional expansion carried out by the Sikhya 'O' Anusandhan University or the Hospital of Respondent No.8 in question, since the expansion was of an area of 13,543 square meters which was less than 20,000 square meters, therefore, the Environmental Clearance was not insisted upon in view of the Ministry of Environment, Forest and Climate Change Notification dated 22.12.2014.
25. We also find that the Deputy Director General of Forests (Central) vide his letter dated 01.01.2021 had itself sought a clarification from the Ministry of Environment, Forest and Climate Change and thereafter the Ministry of Environment, Forest and Climate Change has issued Office Memorandum dated 22.03.2021 clarifying therein that if there is no clear demarcation between 22 hospital/clinical and non-hospital/clinical components then the project with built-up area greater than or equal to the threshold of 20,000 square meters, as stipulated under item 8 of the Schedule to EIA Notification dated 2006, shall attract those provisions and require prior Environmental Clearance.
26. We also find that the Joint Committee which submitted its report dated 09.04.2021, copy of which has been filed by the Applicant as well as by the Respondent No.6, itself does not appear to be very clear as regards the requirement of Environmental Clearance. In the 'Conclusion' of the Committee which is reproduced hereinabove, the Committee itself has noted that the Respondent No.8 has never gone for construction activity beyond 20,000 square meters after EIA Notification of 14.09.2006 till the Notification of the 22.12.2014 was issued by the Ministry of Environment, Forest and Climate Change. Hence, the Respondent No.8 does not require Environmental Clearance for the entire building after 14.09.2006. The Committee has also noted that since the Hospital components (clinical) of the Medical University with built-up area being less than 20,000 square meters, the Environmental Clearance under the amended EIA Notification of 22.12.2014 was not required. It was also noted by the Committee that the Notification was silent about the requirement of Environmental Clearance for building project with a built-up area more than 20,000 square meters where both clinical area as well as non-clinical (teaching) area are situated in the same building premises of the Hospital. It was also noted by the Committee that 23 since the total construction area is not exceeding 1,50,000 square meters, therefore, the Respondent No.8 does not require Environmental Clearance for the entire project, though the Ministry of Environment, Forest and Climate Change, Government of India has to clarify whether an Environmental Clearance is required for the project where both clinical area as well as non-clinical (teaching) area are situated in the same building premises of the Hospital.
27. We may also refer to the Addendum dated 14.01.2020 of the Bhubaneswar Development Authority filed as Annexure-V (at page 201 of the paper book) to the affidavit of the Respondent No.8 which also in its remark column mentions that the total clinical area is 13,543 square meters and total teaching area is 47,833 square meters.
28. We may also note that the Respondent No.8, in the meantime, had applied for grant of Environmental Clearance in respect of the project submitted to the State Environment Impact Assessment Authority (SEIAA), Odisha, under the proposal dated 14.07.2021 and thereafter the Environmental Clearance was also granted by the SEIAA, Odisha on 11.01.2022, copy of which has been filed as Annexure-A4 (at page 255 of the paper book). It would be relevant to reproduce the extract of the Environmental Clearance which records the entire factual controversy of the present case which reads as under:-
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29. Thus, it will be seen that there was a genuine controversy as to whether clinical part of the Hospital would have to be segregated from the non-clinical part (i.e. teaching) if both were in the same Hospital premises and this controversy was not cleared to the Respondent No.6, therefore, clarification was sought from the Ministry of Environment, Forest and Climate Change as late as January 2021 and the clarification was also issued by the Ministry of Environment, Forest and Climate Change through its letter dated 22.03.2021. Thereafter, the Respondent No.8 has not delayed in promptly applying for grant of Environmental Clearance which has now been granted and the Environmental Clearance is with regard to the conversion of 47,833 square meters of institutional area (already constructed and used for teaching purposes) as mentioned in the Bhubaneswar Development Authority Plan dated 14.01.2020 to clinical area plus increasing of 13,543 square meters area upto 25,678.92 square meters. Thus, the total built up area of different buildings in the Campus-III will be 1,49,841 square meters i.e., 76,330 square meters built up area will be for clinical purposes and 73,511.00 square meters area will be used for institutional/hospital building purposes.
30. We find from the facts narrated above, that it cannot be said that the Respondent No.8 has deliberately omitted to obtain Environmental Clearance for the proposed expansion project or that it did not deliberately apply for Environmental Clearance where, in fact, he had applied for Environmental Clearance in 2013 but he was informed by SEAC, Odisha that Environmental Clearance was 26 not required since the area of expansion was less than 20,000 square meters and thereafter the Office Memorandum of the Ministry of Environment, Forest and Climate Change dated 09.06.2015 created an ambiguity until it was clarified by the Ministry of Environment, Forest and Climate Change through Office Memorandum dated 22.03.2021. The Respondent No.8, therefore, cannot be faulted for the cloud of confusion which created by the official Respondents.
31. The Notification of the Ministry of Environment, Forest and Climate Change dated 22.12.2014 granted exemption to the educational institutions from the requirement of obtaining Environmental Clearance whereas the Notification of the Ministry of Environment, Forest and Climate Change dated 09.06.2015 stated that in case of medical universities/institutes, the component of Hospitals will continue to require Environmental Clearance. The ambiguity flowing from the Notification of 09.06.2015 was regarding Hospitals which also had a component of non-clinical (teaching). It is nobody's case that the expansion proposed and constructed by the Respondent No.8 was being the element of educational institution i.e., non-clinical within the Hospital premises. The question, therefore, was, how to reconcile the language of Note-1 of the Notification of Ministry of Environment, Forest and Climate Change date 22.12.2014 with the language of the Ministry of Environment, Forest and Climate Change Notification of 09.06.2015 and the matter was settled only after the Ministry of Environment, 27 Forest and Climate Change clarified the position through its subsequent Office Memorandum dated 23.03.2021.
32. In the circumstances, the Respondent No.8 cannot be penalized for not having the requisite Environmental Clearance for expansion of its project, though we may hasten to note that since the Ministry of Environment, Forest and Climate Change has clarified that Environmental Clearance was required for clinical as well as non-clinical area, if situated in the same building premises vide its letter dated 22.03.2021, the Respondent No.8 has promptly applied for grant of Environmental Clearance which has also been granted by the SEIAA, Odisha vide its letter dated 11.01.2022.
33. The conduct of the Respondent No.8, in the circumstances, cannot be termed to be a devious contravention of the EIA Notification of 2006 or the Ministry of Environment, Forest and Climate Change Notification dated 22.12.2014 or the Ministry of Environment, Forest and Climate Change Notification dated 09.06.2015.
34. We, therefore, on a conspectus of facts, do not find any merit in the Original Application and same is accordingly dismissed.
35. There shall be no order as to costs.
......................................... B. AMIT STHALEKAR , JM .......................................
SAIBAL DASGUPTA, EM Kolkata, February 23, 2022, Original Application No. 54/2020/EZ AK 28