National Green Tribunal
M/S Rathi Special Steel Ltd vs Commission For Air Quality Management ... on 4 August, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
APPEAL NO. 29/2022
(EARLIER APPEAL NO. 11/2022 (CZ)
(I.A. No. 150/2022)
(CAVEAT No. 01/2022)
WITH
APPEAL NO. 28/2022
(EARLIER APPEAL NO. 04/2022 (CZ)
IN THE MATTERS OF:
M/s. Rathi Special Steels Ltd.
Unit at plot no. SP-29 & F-20-24,
RIICO Industrial Area Khushkhera
Tehsil-Tijara, District-Alwar
Rajasthan - 301707
Registered office at A-24/8, Mohan Co-operative Industrial Estate
Mathura Road, New Delhi, India - 110044
...Appellant
Versus
1. Commission for Air Quality Management in National Capital
Region and Adjoining Areas
17th Floor, Jawahar Vyapar Bhawan
(STC Building) Tolstoy Marg,
New Delhi- 110001
2. Rajasthan State Pollution Control Board
4, Jhalana Institutjional Area, Jhalana Doongri
Jaipur - 302004
3. Rajasthan State Pollution Control Board
Bhiwadi Office
G.O. -1, Ph-II, RIA
Bhiwadi
...Respondent(s)
Counsel for Appellant:
Mr. Sanjay R. Hegde, Senior Advocate with Mr. Anand Shankar Jha
and Mr. Arpit Gupta, Advocates
Counsel for Respondent(s):
Dr. Abhishek Atrey & Mr. Vaibhav Kandpal, Advocates for respondent 1
Mr. Sandeep Singh Baghel, Advovate for RSPCB (respondent 2)
1
PRESENT:
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Reserved on: 21st June, 2022
Pronounced on: August 04, 2022
SYNOPSIS
Documents Para no Page no
Brief facts 1-10 2-6
Pleadings in memo of Appeal No. 28/2022 i.e. Appeal I 11-19 6-10
Reply/Counter Affidavit filed on 17.05.2022 by AQM 20-33 10-20
Commission in Appeal I
Appeal No. 29/2022 i.e., Appeal II 34-35 20-29
Additional affidavit dated 08.06.2022 filed on 09.06.2022 by 36 29
appellant in Appeal II
Proceeding of Tribunal, Principal Bench 37 29
Reply/Counter Affidavit dated 13.06.2022 by AQM Commission 38 29-31
filed on 15.06.2022 in Appeal II
Rejoinder by appellant dated 15.06.2022 filed on 16.06.2022 in 39 31-40
Appeal II
Reply dated 16.06.2022 filed by RSPCB i.e. respondent 2 on 40 40-41
17.06.2022
Arguments 41-44 41-54
Written submission dated 23.06.2022 filed by appellant in 43 42-52
Appeal I and II
Written submission dated 24.06.2022 filed by AQM 44 52-54
Commission in Appeal I and II
Application dated 04.06.2022 filed by RSPCB requesting for 45 54-56
taking certain documents on record in Appeal II
Issues 46 56-57
Issue I 47-148 57-107
Issue II 149-226 107-134
Issue III and IV 227-254 134-147
Issue V, VI and VII 255-258 148-149
Issue VIII 259-316 149-172
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. Both these appeals have been filed by the same appellant i.e., M/s. Rathi Special Steels Ltd. (hereinafter referred to as 'appellant'), being aggrieved by the orders dated 21.01.2022 and 05.05.2022 issued by Commission for Air Quality Management in NCR and adjoining areas (hereinafter referred to as 'AQM Commission') constituted under the 2 provisions of Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 (hereinafter referred to as 'AQM (NCR&AA) Act, 2021'). The later appeal is a consequence of an order of Tribunal passed in the former one, therefore, in respect of facts and laws, both the matters involve same issues, hence are connected and being decided jointly by this common judgment.
2. Appeal No. 04/2022 (CZ) was filed in Bhopal Bench, assailing AQM Commission's order dated 21.01.2022 (annexure-A/5) whereby AQM Commission directed immediate closure of appellant's unit and Member Secretary of Rajasthan State Pollution Control Board (hereinafter referred to as 'RSPCB') or an officer nominated by him was directed to initiate prosecution under Section 14 of AQM (NCR&AA) Act, 2021 against appellant's unit. Basic ground of challenge of order dated 21.01.2022 is that no opportunity or show cause notice was given to appellant, therefore, order is in violation of the principle of natural justice. Appeal was registered on 23.03.2022 and after removal of defects on 25.03.2022, it was placed before the Bench at Bhopal on 29.03.2022. Bench passed following order:
"I.A No. 26/2022
1. This is an application for condonation of delay. In view of the Miscellaneous Application No. 665/2021 in SWM No. 03/2020 of the Hon'ble Supreme Court of India, delay is condoned. I.A. is disposed of accordingly.
2. Challenge in this appeal is the order dated 21.01.2022 passed by the respondent whereby the closure order of the unit of the Appellant has been passed as per the provision of Section 12 of Air Quality Management Committee in National Capital Region and Adjoining Areas Act 2021 which came into existence on 12.08.2021. The contention of the Learned Counsel for the Appellant is that the order passed by the Respondent is in complete disregard of the Principle of Natural Justice as neither any show cause notice has been given nor any opportunity of hearing has been provided to the Appellant before passing the order impugned.3
3. Issue notices returnable within four weeks.
4. The appellant has pressed the interim relief as mentioned in the application with the prayer that an appropriate direction and order be passed to stay the operation of the order dated 21.01.2022 and the appellant may be permitted to resume the operation of industry. The Learned Counsel of the appellant has relied on 2021 SCC online NGT 316 (Appeal No. 34/2021 order dated 17.12.2021) wherein this Tribunal observed as follows:
"On due consideration but without expressing any opinion on merits, we find it appropriate to direct Respondent No. 2 - Commission to take a decision on the stand of the appellant in accordance with law. The appellant may appear before the Commission for further consideration on 20.12.2021 at 11 AM for further proceedings. Pending further consideration and subject to further orders of the Commission, having regard to stand of the appellant, the appellant is permitted to resume operations. The Commission may pass further order in the matter within one week".
5. In view of the above observation, we direct the appellant to appear before the Commission on 18.04.2022 at 11:00 AM for further proceedings and consideration before the Respondent/ Commission and we direct the Respondent/ Commission to take a decision on stand of the appellant in accordance with law. Having regard to stand of the appellant, the appellant is permitted to resume the operations, pending further consideration and subject to further orders of the commission.
List it on 18th May, 2022."
3. Pursuant to order dated 29.03.2022, appellant's unit resumed its operation.
4. In compliance of order dated 29.03.2022, AQM Commission directed appellant to appear before it on 18.04.2022. Appellant appeared and submitted representation on the said date. It also raised a complaint that inspection report dated 18.01.2022 was not supplied to it earlier and it has been made available only on 18.04.2022. Appellant, therefore, requested for some further time to file reply to the inspection report and for further hearing. Tribunal granted opportunity and permitted appellant to appear on 27.04.2022.
4
5. On 27.04.2022, an application was filed on behalf of appellant, seeking adjournment on the ground of non-availability of counsel and personal hardship. This request was not accepted by AQM Commission and it did not adjourn the matter but closed hearing. Subsequently, on 05.05.2022, a fresh order was passed where against appellant preferred Appeal No. 11/2022, filed on 17.05.2022 before Bhopal Bench of Tribunal.
6. On 18.05.2022, when Appeal No. 04/2022 was listed, appellant informed that it has already filed an Appeal which has been numbered as 11/2022 and is likely to come up on 20.05.2022. Hence, Appeal No. 04/2022 was adjourned for 20.05.2022. Later, on 20.05.2022, the Bench at Bhopal considered both the Appeals and after noticing the grounds and contentions advanced on behalf of the appellant and respondents, found that the questions raised relate to the area of NCR and may affect AQM Commissions' proceedings in the areas falling beyond the jurisdiction of Bhopal Bench but falls in the jurisdiction of Principal Bench. Bench therefore, expressed its observations that both Appeals should be heard at Principal Bench. Extract of the order dated 20.05.2022, contained in para 8 to 11, reads as under:
"8. On the basis of the above arguments, a question has been raised that the issues involved in this appeal relates to the NCR and may affect the action of the Commission in other areas falling within the jurisdiction of Principal Bench, thus it is desirable that the present appeals should be heard and decided by Principal Bench of this Tribunal at New Delhi.
9. Respondent No.1 is present and sought a short time to file the reply. Issue notice to Respondent No. 2 and 3 to file their replies.
10. We are of the view that the contentions as raised by the both the parties requires to be heard and decided by Principal Bench of this Tribunal, since most of the NCR areas falls within the jurisdiction of Principal Bench, New Delhi, (to avoid conflicting views and to apply principle of law).
11. Accordingly, we direct the Registrar to place the records before the Hon'ble the Chairperson of the NGT, PB, New Delhi to pass an appropriate order for transferring these two appeals from this Bench to the Principal Bench, New Delhi for disposal according to law. Next 5 date will be fixed and communicated by the Registry at Principal Bench, New Delhi."
7. Consequently, both the Appeals were transferred to Principal Bench and re-registered as under:
Appeal No. 04/2022 (CZ) was registered as Appeal No. 28/2022, and Appeal No. 11/2022 (CZ) was registered as Appeal No. 29/2022.
8. At Principal Bench, a request was made that matter is urgent and, therefore, Appeals may be taken during summer vacation which was accepted and both Appeals were heard on 09.06.2022. After hearing the parties, Tribunal found that though AQM Commission has filed its reply in Appeal No. 04/2022 (registered as Appeal No. 28/2022 at Principal Bench), but in the subsequent Appeal wherein detailed order was passed, response is yet to come. Consequently, Tribunal passed order, permitting AQM Commission as also RSPCB to file their replies. Appellant was also permitted to file rejoinder. With the consent of parties, Appeals were posted for final hearing on 17.06.2022.
9. Both Appeals were heard on 17.06.2022 and 21.06.2022. After conclusion of arguments, order was reserved. However, as requested, parties were also allowed to file written submissions.
10. We now proceed to consider appeals on merit; first by referring the pleadings and, thereafter, arguments and discussion on merit. Appeal No. 28/2022 (Earlier Appeal No. 04/2022 (CZ)) (hereinafter referred to as 'Appeal I')
11. Pleadings in memo of Appeal I: M/s. Rathi Special Steels Ltd. (hereinafter referred to as 'RSSL' or 'appellant') is a public limited company incorporated under Companies Act, 1956 vide Registrar of Companies, NCT of Delhi and Haryana, Certificate of Incorporation dated 06.04.2004. It is employing about 300 employees, comprising casual 6 workers and labourers in the unit at Alwar, Rajasthan. Company has financial assistance (overdraft/credit facility) from HDFC Bank, New Delhi of Rs. 75 Crores which is required to be re-paid in quarterly installments. The total investment of appellant in the unit at Alwar comprising plant, land, building, machinery etc. is approximately Rs. 77.78 Crores. Appellant has also spent huge amount on pollution control measures as per directions of RSPCB. Appellant is engaged in manufacturing and trading of thermo-mechanical treatment (hereinafter referred to as 'TMT'), reinforcement steel bars and low carbon billets. It is manufacturing the product with brand name of 'Rathi Shaktiman Construction Steel Bars'. Appellant has in-house capacity of producing mild steel billets as raw materials for producing steel bars. 'Rathi Shaktiman Excel' (another brand name of product) is hot rolled from steel billets and subjected to programmable logic controller (hereinafter referred to as 'PLC') controlled online thermo-mechanical treatment in three stages, which include quenching stage, tempering stage and cooling stage. Under quenching stage, water spray is used as a cooling treatment to hot ribbed bar at controlled temperature and pressure. Rathi Shaktiman Excel has double rib pattern. Rathi Shaktiman Thermax is available in a range of sizes. Appellant company is manufacturing Rathi Shaktiman Excel at its manufacturing plants in North India. Company has steel rolling mill at Khushkhera, Alwar district, Rajasthan.
12. On several occasions, premises of appellant unit at Alwar was inspected by officials of RSPCB. No violation of environmental norms or laws was found by them. The recent Consent to Operate (hereinafter referred to as 'CTO') was granted by RSPCB on 21.06.2018 and is valid up to 31.07.2021. Application for renewal of consent was submitted on 10.03.2021 i.e., before expiry of validity period of CTO. 7
13. RSSL has further pleased that Parliament enacted AQM (NCR&AA) Act, 2021 for regulating and monitoring air pollution level in NCT of Delhi and adjoining areas. The rolling mills, like appellant's unit, were exempted from obtaining Environmental Clearance (hereinafter referred to as 'EC') under Environment Impact Assessment Notification, 2006 (hereinafter referred to as 'EIA 2006'). However, Tribunal, vide order dated 12.02.2020 passed in Gajubha Jesar Jadeja vs. Union of India & Others, OA 55/2019(WZ), took a view that rolling industries had to obtain EC and granted time to obtain EC, but, during this period, industries were allowed to operate.
14. On 17.01.2022, appellant's unit was inspected by a Flying Squad constituted by AQM Commission without giving prior notice/intimation to appellant. During inspection, members of Flying Squad directed appellant, orally, to e-mail its production data, which it submitted in due course of time. No inspection report was handed over to appellant by the said Flying Squad. No clarification/explanation was asked from appellant. Instead, AQM Commission straightway in an ex-parte manner, passed order dated 21.01.2022, directing closure of appellant's industrial unit at Khushkhera, Alwar District, Rajasthan. Ground for closure of unit mentioned in the order was non-compliance of direction no. 49 dated 15.12.2021 issued by AQM Commission under Section 12 of AQM (NCR&AA) Act, 2021.
15. Direction no. 49 provides that until further orders, industries related to textiles, garments and apparels including dyeing processes and other set of industries shall also be permitted to schedule their operations (without any restrictions on number of hours per day) only for five days per week, i.e., from Saturday to Wednesday and shall remain inoperative on Thursday and Friday. Order of closure says that appellant's unit operated on 6th, 7th, 13th and 14th January, 2022, i.e., Thursday and Friday 8 and thus, violated the above direction. Appellant submitted representations dated 27.01.2022, 31.01.2022, 03.02.2022 and 02.03.2022 (filed collectively as annexure-A/7 to memo of appeal I), stating that no production was done on offending days mentioned in closure order and, therefore, unit be allowed to operate. It was further stated that in any case, finished goods etc. lying on the site be allowed to be dispatched to the concerned parties which is necessary for meeting commercial commitments and financial requirements of the company. Appellant also submitted documents showing production data nil on 6th, 7th, 13th and 14th January, 2022.
16. RSPCB, however, in the meantime, in furtherance of closure order dated 21.01.2022 passed by AQM Commission, issued a letter to Jaipur Vidyut Vitran Nigam Limited, Bhiwadi (hereinafter referred to as 'JVVNL'), requesting to disconnect electricity supply of appellant's unit at Khushkhera, Alwar district.
17. AQM Commission also issued a letter dated 02.02.2022 addressed to Member Secretaries of Haryana State Pollution Control Board, Uttar Pradesh Pollution Control Board, Delhi Pollution Control Committee and RSPCB directing to impose penalty for violation of statutory directions of AQM Commission.
18. Consequently, RSPCB vide letter dated 07.02.2022 imposed compensation of Rs. 2,41,875/- upon appellant, which it paid on the same date, vide demand draft no. 000738 dated 07.02.2022, issued in favour of Member Secretary, RSPCB. Thereafter, RSPCB sent a letter dated 23.02.2022 (Annexure-A/12 to memo of appeal I) addressed to Director, AQM Commission with a request of re-consideration for resumption of 9 production activities of appellant's unit at Khushkhera, district Alwar, Rajasthan. However, no further action was taken.
19. Appellant then filed Appeal No. 4/2022 i.e., Appeal I at Bhopal Bench of this Tribunal availing remedy under Section 18 of AQM (NCR&AA) Act, 2021. Appeal was filed on 22.03.2022 and registered on 23.03.2022. There were certain defects which were removed vide office note dated 25.03.2022. Thereafter, Appeal was taken up for admission by the Bench on 29.03.2022 which we have already stated above. After Tribunal's order dated 29.03.2022, a fresh order was passed by AQM Commission on 05.05.2022 where against appellant preferred Appeal No. 11/2022 (CZ) (hereinafter referred to as 'Appeal II'). Reply/Counter Affidavit filed on 17.05.2022 by AQM Commission in Appeal I
20. Respondent 1, i.e., AQM Commission filed a detailed reply in Appeal I. This affidavit is sworn by Shri Rajesh Kumar, Director, AQM Commission. It was stated that appellant has filed Appeal with un-cleaned hands; pursuant to order dated 29.03.2022, appellant was given opportunity of hearing on 18.04.2022 and 27.04.2022 and thereafter, final order was passed on 05.05.2022, as a result whereof, Appeal I has rendered infructuous. Giving reference to Constitution of AQM Commission, it is said that same was constituted under the provisions of AQM (NCR&AA) Act, 2021 for better co-ordination, research, identification and resolution of problems surrounding air quality index and for matters therewith or incidental thereto. AQM (NCR&AA) Act, 2021 confers power upon AQM Commission to take all such measures, issue directions and entertain complaints, as it deems necessary or expedient, for the purpose of protecting and improving quality of air in NCR and adjoining areas. AQM Commission shall also have duty to take all such measures as may become 10 necessary for protecting and improving quality of air in NCR and adjoining areas. Various studies conducted in past regarding pollution in NCR have established that industries are one of major sources of pollution in Delhi- NCR. Situation becomes serious in winter because of low temperature, unfavourable wind velocity, poor ventilation index and low mixing heights. Many steps have been taken to prevent, control and abate air pollution including from industries, in NCR. AQM Commission has also repeatedly taken up matter relating to air pollution in NCR with Government of NCT of Delhi, Haryana, Uttar Pradesh, Rajasthan, Punjab and various organizations of Central and State Governments. It had also issued directions, advisories as well as conveyed decisions for implementation of measures for abating air pollution in NCR. As a matter of emergency and abundant caution, certain decisions were taken by AQM Commission from time to time, more specifically in winter season, compelled by need to prevent further deterioration of environment and towards improvement of air quality in Delhi and NCR. Reference is given to orders of Supreme Court passed in Aditya Dubey vs. Union of India & Others, Writ Petition (Civil) No. 1135/2020 relating to air pollution in Delhi and NCR. AQM Commission, vide its order dated 02.12.2021, constituted an Enforcement Task Force (hereinafter referred to as 'ETF') to monitor and supervise implementation of statutory directions of AQM Commission. ETF was entrusted with task to inspect, continuously supervise and monitor compliance of directions issued by AQM Commission through inspection teams/flying squads. Taking note of ETF, Supreme Court, in its order dated 03.12.2021 in Aditya Dubey vs. Union of India & Others (supra), observed as under:
"...We find that in 'Enforcement Task Force' of Five Members is stated to have been constituted by the said Commission in exercise of its statutory powers. The Task Force will exercise powers of taking punitive and preventive measures against the non- complaint/defaulting persons/entities..."11
21. Some industries sought relaxation of conditions imposed by AQM Commission whereupon Supreme Court vide order dated 10.12.2021 passed in Aditya Dubey vs. Union of India & Others (supra), said:
"...We direct the Commission to examine requests of various industries and organisations about relaxation of conditions imposed by virtue of our previous orders or otherwise as per the Commission's circulars..."
22. As an emergency measure and in order to regulate deteriorating air quality scenario and adverse air quality index in NCR and adjoining areas, AQM Commission issued direction no. 49 dated 15.12.2021, in respect of industries in NCR which have still not shifted to PNG/cleaner fuels, to schedule their operations only for five days a week. For the said purpose, industries were categorized into three categories. Relevant extract of direction no. 49 dated 15.12.2021 reads as under:
"(i) Industries related to paper and pulp processing, distilleries and captive thermal power plants shall be permitted to schedule their operations (without any restrictions on number of hours per day) only for 5 days per week i.e., from Monday to Friday and shall remain closed/inoperative on Saturdays and Sundays.
(ii) Industries related to paddy rice processing shall also be permitted to schedule their operations (without any restrictions on number of hours per day) only for 5 days per week i.e., from Wednesday to Sunday and shall remain closed/inoperative on Mondays and Tuesdays.
(iii) Industries related to textiles, garments and apparels including dyeing processes and other set of industries not falling in any of the categories from (i) to (ii) above, shall be permitted to schedule their operations (without any restrictions on number of hours per day) only for 5 days per week i.e., from Saturday to Wednesday and shall remain inoperative on Thursday and Fridays."
23. Above directions were also placed before Supreme Court vide affidavit dated 15.12.2021. Supreme Court took note of above direction in its order dated 16.12.2021, and said:
"...Affidavit dated 15-12-2021 filed by the Commission for Air Quality Management has also been perused.12
We find that the said Commission has taken certain decisions to curb the air pollution after taking into consideration the suggestions/inputs given by the representatives of different organizations.
Let the Commission continue with this ongoing process..."
24. During the period of 02.12.2021 to 02.05.2022, 6013 inspections were conducted by Flying Squad and 429 closure directions were issued. Flying Squads are conducting regular incognito inspections towards effective monitoring and implementation of air pollution control measures. Appellant's unit at Alwar was also inspected on 17.01.2022 by Flying Squad in furtherance to the above-mentioned monitoring and implementation of air pollution control measures. Inspection report pointed out that unit was operating without CTO since existing one had already expired on 31.07.2021 and no further consent was issued by RSPCB. It was also reported that unit was not operating on PNG/cleaner fuels and has violated closure days restrictions having operated on Thursdays and Fridays, i.e., on 6th, 7th, 13th and 14th January, 2022. RSPCB also informed AQM Commission that vide letter dated 16.08.2021, it has informed appellant about intent to refuse consent under Air (Prevention & Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act, 1981') and no further action was taken thereafter by appellant.
25. Flying Squad report dated 18.01.2022 was considered by AQM Commission where after order dated 21.01.2022 was issued for closure of appellant's unit with immediate effect. This order was given effect to by appellant and vide letter dated 21.01.2022, it informed that all industrial operations/activities of the unit located at SP-29 & F- 20-24 RIICO, Khushkhera, Tehsil Tijara, District Alwar, Rajasthan were closed.
26. AQM Commission has further pleaded that RSPCB vide letter dated 23.02.2022 recommended appellant's matter for reconsideration regarding 13 closure. However, AQM Commission, vide letter dated 11.03.2022 sought certain clarifications from RSPCB; firstly, under which provision of law, such industry can be allowed to run without a valid CTO and secondly, whether recommendation to open appellant's industry is in conformity with NGT's order dated 12.02.2020 in OA No. 55/2019(WZ) (supra) and MoEF&CC letter no. IA-J-11013/8/2019-IA-II(I) dated 22.10.2020.
27. The facts regarding filing of Appeal and Tribunal's order thereafter, are admitted and it is said that complying Tribunal's order, opportunity of hearing was given to appellant on 18.04.2022. Appellant not only submitted a detailed representation for consideration of AQM Commission but also requested to provide inspection report dated 18.01.2022, prepared pursuant to inspection dated 17.01.2022. Said report was immediately provided to appellant's representative who thereafter, requested for another opportunity of hearing. Further, opportunity of hearing was granted and appellant was directed to appear on 27.04.2022.
28. In respect of clarifications sought by AQM Commission from RSPCB, vide letter dated 25.04.2022, RSPCB replied and said:
"i. As per prevailing practice of the State Board, industries are allowed to operate till a final decision is taken on renewal of the pending consent application.
ii. The recommendation to open this industry is in harmony with the order of Hon'ble NGT dated 12.02.2020 and MOEF letter dated 22.10.2020 (related to the requirement of an environmental clearance for the category of industry as in the instant matter), as according to the order "This will also ensure that the units remain in operation for the allowed period and closures, unemployment and related social issues/unrests are avoided. During this period of one year, they will have to follow the conditions imposed under the CTE/CTO"."
29. On 27.04.2022, representatives of appellant appeared and advanced their submissions. They were asked to present their case on facts and merits of additional submissions, if any, before AQM Commission, or may 14 submit their arguments, in writing, during the course of the day. However, representatives of appellant did not provide any new facts, documents, information, and submissions, rather requested for further hearing through Counsel on any day after 14.05.2022 on the plea that Counsel would brief Commission on legal aspects of the matter. This long adjournment requested by appellant's representative, was declined, since sufficient opportunity was granted to appellant.
30. Basic grounds raised by representative of appellant before AQM Commission are summarized in para 35 as under:
"(i) Application of renewal of Consent to Operate was submitted to the RSPCB 140 days before its expiry and when an application for renewal of consent is made within stipulated time and is pending, it shall be deemed that such industrial plant is operating with the consent of the State Board unit the consent applied is refused,
(ii) Inspection team/flying squad visited the unit of RSSL on 17.01.2022 hence the inspection team was not in a position to state whether the unit of RSSL was operational on 6, 7, 13 and 14 January, 2022 and the unit has not violated any direction issued by the Commission,
(iii) Environmental Compensation was levied without being any pollution caused by the industry,
(iv) The Commission has no jurisdiction to examine and adjudicate the issued relating to CTO under the Air and Water Act and the same falls within the jurisdiction of the RSPCB. The Commission has no power to usurp the powers of State Pollution Control Boards,
(v) As per NGT's order dated 12.02.2020 in OA No. 55/2019/WZ received through MoEF&CC's letter dated 22.10.2020 industry was required to apply for fresh environmental clearance and get covered under EIA Notification, 2006 and in this duration the industry will be allowed to resume their operation and due to this there was a lot of confusion amongst the operators of such type of re-heating furnaces engaged in rolling mill operations. Further, a Civil Appeal No 3116/2020 is filed before the Hon'ble Supreme Court and the matter is sub judice,
(vi) Environmental Clearance is not required to the unit of RSSL based on their per annum production capacity,
(vii) The Commission is only empowered to impose penalty for alleged non-compliance of any direction of the Commission and closure of an industry can only be directed as a consequence of pollution or if there is anticipation of pollution being caused, 15
(viii) Section 14 of the Commission stipulates that wrong doer would be punished with imprisonment and fine or with both it does not state that the non-compliance would lead to closure;"
31. There are judgments of Supreme Court and Tribunal that retrospective consent for clearance cannot be granted. AQM Commission in its reply has referred to the following decisions of this Tribunal and Supreme Court:
(i) NGT judgment dated 31.01.2019 in OA 368/2018, Nilkanth Rajaram Raskar vs. M/s. Saswad Mali Sugar Factory Ltd. & Others;
(ii) NGT judgment dated 25.02.2022 passed in OA 69/2020, Sushil Bhatt vs. Moon Beverages Ltd. & Others;
(iii) NGT order dated 03.06.2021 passed in OA 287/2020, Dastak N.G.O. vs. Synochem Organics Pvt. Ltd. & Others;
(iv) NGT order dated 09.11.2015 passed in OA 41/2014/EZ, Joydeep Mukherjee & Others;
(v) NGT order dated 14.10.2015 passed in OA 24/2014/EZ, Subhas Datta vs. State of West Bengal & Others;
(vi) Supreme Court order in Alembic Pharmaceuticals Ltd. vs. Rohit Prajapati, (2020) 17 SCC 157.
32. Commenting upon the stand of RSPCB that as per prevailing practice, industries are allowed to operate till final decision on pending application for renewal of consent is given, it is said that it would amount to renewal of consent with retrospective effect which is in contravention of law declared by Supreme Court as well as judgments of this Tribunal. Further, appellant was also required to obtain EC under EIA 2006 as directed vide Tribunal's judgment dated 12.02.2020 in OA No. 55/2019(WZ) (supra) and MoEF&CC's memorandum dated 13.04.2022 16 but no attempt was made by appellant to obtain EC and it had continued to run its unit without any EC. Contesting Appeal, AQM Commission in its reply has said:
(i) Appellant has not only failed to comply with order of NGT and statutory obligation of obtaining EC under Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act, 1986') but also did not get CTO renewed by RSPCB since expiry of CTO on 31.07.2021.
(ii) It is amply clear that no provision under extant environment laws permits the unit to run with an expired CTO and/or in absence of EC. It is evident that EC and/or CTO are required to be obtained under purview of different environmental laws and the relevant laws mandate for a prior EC and a prior CTO which warrants a careful application of mind, besides a study into likely consequences of the activity on environment. Hence, permitting the industry to operate till final decision on the pending consent application for renewal, would be in contravention to the settled law position and if renewal of CTO is to be ultimately refused, irreparable harm would have been caused to environment.
(iii) A joint team comprising officials from CPCB and AQM Commission revisited the unit on 21.04.2022 to further ascertain and verify claim of appellant's unit with respect to compliance of Commission's direction no. 49 dated 15.12.2021. Inspection team, based on their visit to appellant's unit and record made available by unit and authorities concerned, concluded as under:
"Though the data/records provided by the unit for the month of January, 2022 on the day of inspection (21.04.2022) to the joint team of CAQM and CPCB showed that unit's manufacturing process were not under operation on 6 & 7 January 2022 and 13 & 14 January, 2022 and only the sale of the earlier manufactured stock was affected on these dates.
However, the daily electricity consumption data acquired through Jaipur Vidyut Vitaran Nigam Ltd.17
(JVVNL) showed that electricity consumption on 6 & 7 and 13 & 14 January, 2022 (i.e. Thursdays & Fridays on which the unit was supposedly not run/operated) was 23400, 22945.5 and 21717 & 23706 Kwh respectively, which is much higher than the average power consumption on other days from 8 to 12 January, 2022, which according to their submissions were the operative days for the unit. The much higher consumption of electrical power on the supposed non-operating days thus clearly suggests that rolling mill in the unit was operational even on these days and manufacturing activity was on."
(iv) Submission made by unit that it was not causing any pollution and had never violated any direction of AQM Commission in any manner whatsoever including direction no. 49 dated 15.12.2021, is contrary to facts and not borne out from record and, therefore, is ab initio invalid in view of data provided by JVVNL, observations of the Flying Squad and report of the team which re-inspected the unit on 21.04.2022.
(v) Judicial pronouncements in this regard clearly hold that CTO cannot be renewed with the retrospective effect and in absence of EC, industry cannot be allowed to function in accordance with law till compliance of statutory mandate. Hence, unit has not only failed to comply with orders of NGT but also grossly violated directions of AQM Commission and thus attracting action in accordance with 'Polluter Pays' principle, following due process of law.
(vi) Submission of appellant was that operation of unit without valid consent is only amenable to jurisdiction of SPCB under provisions of Air Act, 1981 and Water (Prevention & Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act, 1974') and AQM Commission has no jurisdiction to issue any direction of closure of operation of the units without having any CTO. At the same time, appellant has submitted that he has paid penalty compensation in compliance of directions of AQM Commission, therefore, instant 18 proceedings against appellant should be dropped. It is submitted that while on one hand, argument is that unit is outside the jurisdiction of AQM Commission in as far issue of CTO is concerned, on the other, appellant has admitted that it had complied with the directions issued by AQM Commission and paid compensation accordingly. Above stand is contradictory in nature and, therefore, not tenable.
(vii) Various provisions of AQM (NCR&AA) Act, 2021 empower AQM Commission to take all such measures including power to issue directions for the purpose of protecting and improving quality of air in NCR and AQM Commission also have duty to take all such measures as may become necessary for protecting and improving quality of air in NCR and adjoining areas. AQM (NCR&AA) Act, 2021 has also empowered AQM Commission to issue directions to any person officer, authority and such person, officer or authority shall be bound to comply with such directions. It is clear from provisions of AQM (NCR&AA) Act, 2021 that AQM Commission has powers to direct closure, prohibition or regulation of any industry, operation or process or stoppage or regulations of supply of electricity or water or any other services. Therefore, argument that AQM Commission does not have jurisdiction to deal with this matter is not only contrary to explicit provisions of law but also points to incorrect understanding of legal provisions. AQM Commission at no point of time has usurped nor intend to usurp powers of SPCB as alleged but has powers under AQM (NCR&AA) Act, 2021 empowers AQM Commission to take all such measures for protecting and improving air quality in NCR and adjoining areas. Any unit operating without CTO and EC by very nature do not fall within environmental regulatory regime and if such units or their activities are 19 allowed, the very purpose of enacting environmental laws will get defeated.
(viii) Section 21(4) of the Air Act, 1981 does not stipulate a provision for deemed consent, pending a decision on the renewal application for CTO, contrary to what has been submitted by appellant. Available records also indicate that a letter bearing No. F-Tech (M-
22)/RPCB/HOGM/(UID-25881)/445 dated 16.08.2021 was issued to the unit by RSPCB with intent to refuse application for CTO (renewal) under Air Act, 1981.
(ix) Not obtaining mandatory statutory clearance or permission under environmental laws including Air Act, 1981 and EP Act, 1986 can lead to serious irreparable damage to environment including air quality in the region and it is reiterated that AQM Commission is vested with powers to take all such measures, as it deems necessary or expedient for the purpose of protecting and improving quality of air in NCR and adjoining areas and shall also have duty to take all such measures as may become necessary for protecting and improving quality of air in NCR and adjoining areas.
33. Appellant has not filed any rejoinder to reply of AQM Commission in Appeal I. Appeal No. 29/2022 (Earlier Appeal No. 11/2022 (CZ), i.e., Appeal II)
34. This appeal is an off shoot of Appeal I as is evident from the facts already stated above. Pursuant to order dated 29.03.2022 passed in Appeal I, after giving opportunity of hearing to appellant, AQM Commission passed another order dated 05.05.2022 and Appeal II has been filed under Section 18 of AQM (NCR&AA) Act, 2021 against order dated 05.05.2022 passed by AQM Commission. Basic facts upto 05.05.2022 are same as we have already narrated while referring to 20 pleadings in memo of Appeal I above. Additional facts or grounds in Appeal II are that appellant got copy of inspection report only on 18.04.2022. Next date for hearing was fixed by AQM Commission on 27.04.2022 as communicated on 19.04.2022. On 27.04.2022, appellant's counsel was not available. Therefore, an application was e-mailed in advance on 26.04.2022 seeking adjournment. Appellant sought adjournment on the ground of personal reasons but AQM Commission rejected the said request, acted arbitrary and in violation of the principles of natural justice. It closed hearing on 27.04.2022. This shows the hasty way AQM Commission has acted. Hence, even order dated 05.05.2022 amounts to an order passed in violation of principles of natural justice and without proper application of mind. Copy of order dated 05.05.2022 was also forwarded to RSPCB, JVVNL and District Collector, Alwar with direction for disconnection of water supply which shows intention of AQM Commission. New grounds have been taken in the order dated 05.05.2022 which could not have been taken. Grounds of challenge mentioned in para 13 of memo of Appeal II are as under:
"13. That further, it is relevant to mention here that new grounds have been taken in the impugned order. It appears that the impugned order has been passed on the purported context that the Appellant unit was operating without a valid Consent to Operate from the Respondent RSPCB; the Appellant did not operate on PNG/cleaner fuels and that the Appellant was purported to be in non-compliance of direction no. 49 of the Respondent Commission.
A. Regarding the issue of Consent to Operate, it is humbly submitted by the Appellant that obtained consent from state board time to time and last consent to operate was granted vide letter dated 21.06.2018 which was valid up to 31.07.2021. Thereafter, the Appellant industry timely applied for renewal of consent to operate vide application dated 10.03.2021, however, the same was kept pending due the uncertainty regarding the issue of applicability of environmental clearance in industries like the Appellants. It is relevant to mention here that the Application for renewal of consent to operate has never been revoked by the Respondent RSPCB. Further, various other industries producing steel bars/angels from ingots/billets based on TMT process, like the Appellant industry did not apply for environmental clearance.21
It is relevant to mention that applications for obtaining consent to operate have been also filled by all the similar industries which are located in NCR and all these applications are still pending before the respective pollution control boards for the same reason of confusion with regard to applicability of EIA notification on all these Re-Rolling industries and these similar industries are allowed to operate was their respective pollution control board till date. The appellant industry cannot be discriminated by Ld. Commission with regard to its running based on the application filled within the stipulated time with RSPCB which was kept pending for the reason that Respondent RSPCB was not clear about the applicability of the EIA notification on the Appellant.
The brief backdrop of the issue of environmental clearance is as follows-
i. At this juncture it is relevant to mention that in excise of powers conferred by sub-section (1) and clause (v) of subsection (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the central government introduced the Environmental impact Assessment (EIA), vide a notification on 27th January, 1994. The EIA process in India was made mandatory and was also given a legislative status through this Notification issued by the Ministry of Environment and Forests (MoEF) in January 1994. The Notification, however, covered only a few selected industrial developmental activities.
ii. While there were subsequent amendments, the Ministry of Environment & Forests (MOEF) introduced the Environmental impact Assessment (EIA) Notification, on 14th September 2006, which not only reengineered the entire environment clearance process under the EIA Notification 1994 but also introduced a number of sectors which would require prior environmental clearance. The Notification issued on September 14, 2006 supersedes all the earlier Notifications, and has brought out structural changes in the clearance mechanism. The notification was issued in exercise of powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986.
iii. The EIA Notification 2006 has notified a list of sectors which have been further categorized as A or B based on their capacity and likely-environmental impacts. The notification stipulated the requirement of prior environmental clearance in certain cases. The notification has further introduced a system of screening, scoping and appraisal and for the setting up of Environment Impact Assessment Authority at the Central level and State Level Environment Impact Assessment Authorities (SEIAAs) to grant environmental clearances at the Central and State level respectively. The Ministry of Environment & Forests 22 is the Environment Impact Assessment Authority at the Central level and 25 State Level Environment Impact Assessment Authorities (SEIAAS) have been set up in the various States/UTs. The EIA Notification 2006 also stipulates the constitution of a multi-disciplinary Expert Appraisal Committee (EAC) at the Centre and state level Expert Appraisal Committees (SEACs) at State/UT Level for appraisal of Category A or B projects respectively and to recommend environmental clearance to each project/ activities falling under the various sectors to the EIAA/SEIAAs respectively.
iv. That the Secondary Metallurgical processing industry is listed under category 3(a) of the schedule given in the EIA Notification, 2006. However, the EIA notification 2006 does not prescribe any definition of "Secondary metallurgical processes" and this had resulted in uncertainty and consequently seeking of information by a number of industries. It is relevant to mention here that category 5(k) of the EIA Notification 2006 required obtaining of the environmental clearance by all the industries involving use of "Induction/ arc furnaces/cupola furnaces of capacity 5TPH or more".
However, the said notification was silent about "reheating furnaces".
v. That vide a notification dated 1st December, 2009, the Ministry of Environment & Forests (MOEFs) made certain amendments in its earlier EIA 2006 notification. vi. That it is relevant to mention here that the EIA notification 2006 and the amendments thereof do not provide any definition of metallurgical processes. However, vide the aforesaid notification, it was stated that in case of secondary metallurgical processing industrial units, those projects involving operation of furnaces, only such as induction and electric arc furnaces, submerged arc, and cupola with capacity more than 30,000 tonnes per annum (TPA) would require environment clearance. It did not include the type of metals involved in such furnaces. Also, the notification was silent about the processing of metals using the other types of furnaces. Hence, based on the aforesaid notification, it did not appear that the requirement of obtaining environmental clearance applied to the Appellant unit as it produced steel bars/angles from steel billets/ingots through metal forming process which involves heating of the billets in reheating furnaces followed by their rolling using mechanical forces.
vii. That vide MoEF&CCs letter dated December 13, 2010, it was clarified that a unit proposed for manufacturing of the TMT (Thermo Mechanical Treatment) bars is a secondary metallurgical process involving operation of Re-heating furnace and does not attract the provisions of EIA notifications 2006. Photocopy of the letter dated 23 13.12.2010 is annexed hereto and marked as Annexure-
15. According to this clarification the secondary metallurgical processing units using Re-heating furnaces were not required to obtain environmental clearance under the EIA Notification 2006 regardless of their capacity, even though these industries are also called as rolling mills. viii. That the Central Pollution Control Board vide its letter dated December 4, 2018 clarified that Rolling is metal forming process wherein steel (or any other metal or alloys) is converted into products of required shape by physical force or a combination of heating and physical force. It is not a Primary or Secondary steel making process. Therefore, stand- alone steel re-rolling mill do not appear to be covered under environmental clearance notification, which is applicable on Primary and Secondary Metallurgical processing industrial units. Photocopy of the letter dated 04.12.2018 is annexed hereto and marked as Annexure-16.
ix. That it is also imperative to mention here that in terms of sub-section (1) and clause (v) of sub-section (2) of section 3 and section 23 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) or rule (5) of the Environment (Protection) Rules, 1986, a draft notification dated 23.03.2020 was issued by MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, Government of India wherein certain exceptions of projects have been mentioned in clause 26 which states that certain cases shall not require prior-EC or prior-EP. Standalone rolling mills not involving pickling operation with a capacity up to 2,00,000 ton per annum are exempted from obtaining environment impact assessment as per sub clause 25 of exemption list. The Appellant's re-rolling mill is having capacity much less than 2,00,000 ton per annum right from the inception and its operation does not involve pickling operation in any manner whatsoever. From a perusal of the aforesaid notification the intention of the legislature is unambiguous that it intended to exempt re- rolling mills from taking environmental clearance. For sake of reference, the Appellants unit is covered under the aforesaid exemptions as mentioned in clause 26 and sub- clause (25) of the said notification.
x. That it is further humbly stated that the Hon'ble NGT passed an order dated 12.2.2020 in O.A. No. 55/2019(WZ) in the matter of Gajubha Jesar Jadeja vs Union of India & Ors., whereby, the industry of M/s. Chromeni Steel Private Limited (CSPL) which was related to cold rolled coils of stainless steel and directed that particular industry was required to obtain prior environmental clearance. It is pertinent to submit that the Hon'ble NGTs order dated 12.02.2020 required all industries that are similar to CSPL to get covered under the EIA Notifications, 2006 within a period of one year. Internet copy of the Hon'ble NGT's order dated 12.02.2020 is annexed 24 herewith and marked as Annexure-17. Against the Hon'ble NGT's order dated 12.2.2020, a civil appeal has been filed which is instituted as Civil Appeal No. 3116/2020. Notices have been issued in the aforesaid appeal and therefore, the Hon'ble Apex court is seized of the matter. Internet copy of the order dated 15.09.2020 is annexed herewith and marked as Annexure-18. However, it is also pertinent to mention here that the industry M/s. Chromeni Steel Private Limited (CSPL) as in the case of Gajubha Jadeja Jesar case differs from the Appellant industry as Gajubha Jadeja Jesar industry is a rolling mill and its process involved acid pickling, acid handling, acid recovery plant and an effluent treatment plant involving treatment of even hexavalent chromium. Further, the pollution index score of the pickling process alone is very high. Further, the aforesaid order was typical to those specific industries and was not an order for all the industries. xi. That on 22.10.2020, the Ministry of Environment Forest & Climate Change issued a letter to all the member secretaries of SPCB/UTPCC including the Respondents, requesting for providing list of re-rolling/cold units established or operating with a CTE/CTO without obtaining prior environmental clearance and based on the list, the SPCB's/PCCs were requested to take further action so that those units apply for fresh environmental clearance and get covered under EIA notification, 2006, if applicable. It is imperative to note that the departments had left the applicability of the notification on the industries and for the consideration of State pollution Control Board to find out on their own by stating "if applicable". Photocopy of the letter dated 22.10.2020 is annexed herewith and marked as Annexure-19.
xii. That subsequent to the Hon'ble NGTs order and aforesaid MoEF&CC's letters, the Respondent RSPCB issued a letter dated 24.12.2020 to the Appellant directing to get covered under EIA Notification 2006, if applicable, and submit details and copy of fresh Environmental Clearance to respondent RSPCB. A copy of the aforesaid letter dated 24.12.2020 from respondent RSPCB is annexed and marked as Annexure-
20. It is reiterated that the Respondent department had left the applicability of the notification on the industries to find out on their own by stating "if applicable". The Respondent Departments did not test the applicability-validity of the environmental clearance on the Appellants industry. xiii. Since the 2006 notification and its subsequent amendments does not specify coverage of forging/rolling as secondary metallurgical process and further, since the notification does not provide the definition of the metallurgical process, there was a lot of uncertainty amongst such industries and hence various representations were sent by the Bhiwadi Rolling Mill Association. Even a discussion paper on 25 "Applicability if EIA notification 2006 to secondary metallurgical processing industries" was submitted by the Association. Photocopy of the representation and discussion paper dated 08.03.2022 are annexed herewith and marked as Annexure-21 (Colly). The Appellant is a member of the said Association.
xiv. Due to the aforesaid notifications and letters, there was a lot of uncertainty amongst such industries and hence various representations were sent seeking clarifications from the concerned departments, however, the MOEFC&CC and respondent RSPCB merely stated to get covered under the notification, "if applicable". The authorities had left the applicability of the notification on the industries to find out on their own and none of the authorities decided the issue. On the other hand, no department was seeking to decide the applicability of the aforesaid notification on the particular processing industries and they just intended to apply the judgment of NGT on every industry in a mechanical manner. The Appellant did not apply to obtain environmental clearance due to the confusing scenario prevailing on account of the aforesaid facts and circumstances.
xv. On the other hand, the respondent RSPCB has also kept the issue of renewal of consent to operate pending on account of the pendency of Representations before the Central government, causing huge inconvenience and adverse consequences for the industries including the Appellant.
In this context, even the Respondent RSPCB issued a letter dated 23.02.2022 to the Director of the Commission stating and clarifying as follows:
"...It is further submitted that there is lot of confusion among operators of such type of re-heating furnaces engaged in rolling operation about applicability of obtaining Environment Clearance to reheating furnaces and thereby they have submitted various representations to the State Board, CPCB & MOEF&CC in this matter.
In view of above, you are requested to reconsider sympathetically as unit has applied for CTO timely, adopted adequate pollution control measures and deposited Environmental Compensation and therefore allow them to resume their production activities till clarity received from MOEF&CC....."
A copy of the letter dated 23.02.2022 is annexed hereto and marked as Annexure-22.
xvi. That because of the prevailing confusion and the pendency of the consent to operate application, the consequence which was faced by the Appellant was the pendency of the renewal of its consent and 26 issuance of the adverse closure order by the Respondent Commission. One of the reasons for passing such an order was the pendency of issuance of renewal of consent to operate by respondent RSPCB.
xvii. That the Appellant did not apply for environmental clearance due to the bonafide cause of uncertainty which is apparent from its letters and representations submitted time and again. Further, without admitting that even if the Appellant industry was at fault, it was only the Respondent RSPCB who could have taken any adverse action against the Appellant since the issue of CTO falls under the jurisdiction of the state pollution control boards. By passing the impugned order, the Respondent Commission is trying to usurp the powers of the Respondent RSPCB."
B. That further, regarding the issue of operating on PNG/cleaner fuels, it is submitted that the Appellant has already approached the Haryana city gas for gas connection and the gas connection and the gas pipeline has recently reached the Appellants area. Further, as per the order of the Respondent Commission, the last date for shifting to cleaner fuel or PNG is 30.09.2022 and hence this ground taken by the Respondent Commission in the impugned order is premature. It is an admitted fact that the Appellant has time till 30.09.2022 to shift to cleaner fuels and it intends to complete the process by 30.09.2022.
C. That regarding the allegation of the industry being operational on Thursday and Friday i.e. 6,7,13 and 14 January, 2022, it is humbly submitted that the Respondent Commission is taking new grounds against the Appellant in its impugned order and wherein no proper opportunity of hearing was given to the Appellant. Further, the Respondent Commission has already imposed and collected environmental compensation from the Appellant and hence they cannot go beyond that now. The Respondent Commission is barred from taking any action against the Appellant at this juncture on the principles of res- judicata. The Appellant industry cannot be directed to be closed again and again for the same reason even when it has already paid for the alleged non-compliance and has already been closed for more than a period of 60 days. The Appellant industry is not in non-compliance of any order/direction. D. That further, the Respondent Commission in its impugned order dated 05.05.2022 has cited various judicial pronouncements regarding retrospectively granting CTO, however, the same are not applicable in the instant case. Further, even assuming without admitting that such an issue is relevant in the case in hand, it is submitted that the Hon'ble Apex Court on 25.03.2022, in the case of M/s Pahwa Plastics Pvt. Ltd & Others vs Dastak NGO and Others, held that the Environment Protection Act, 1986 does not prohibit ex post facto EC. It was further stated that ex post facto clearances cannot be declined with pedantic rigidity. Hence, the aforesaid judgment would supersede all the 27 orders as mentioned by the Respondent Commission in its impugned order. The Respondent Commission has very conveniently ignored the aforesaid order and has acted on its own whims and fancies. Further, the prevailing practice of RSPCB to allow industries to operate till a final decision on pending applications is given does not tantamount to renew CTO with retrospective effect. Further, the aforesaid is a settled principle of law as per section 21 of the Air (Prevention and control of pollution) Act, 1981 and section 25 of the Water (Prevention and control of Pollution). Therefore, the application is to be considered as pending and hence this ground taken by the Respondent commission is bad in law.
35. It is pleaded that for the first time, appellant has been indicted vide order dated 05.05.2022 on the ground of want of EC though it was not a ground taken earlier and even copy of MoEF&CC letter dated 13.04.2022 was not provided to appellant. Be that as it may, appellant has immediately acted upon and submitted application for grant of EC on 10.05.2022. Even RSPCB was not clear, hence, it sought clarification from MoEF&CC vide letter dated 09.03.2022 regarding applicability of EC in the matter of reheating furnaces/units engaged in rolling operations for manufacturing TMT Bars, angles, sections rolling items etc. It is only in response thereto, MoEF&CC first time replied and clarified that re-rolling is one of the processes in the secondary metallurgical industry and attracts the provisions of EIA 2006. Therefore, up to 13.04.2022, there was no clarity on the issue of requirement of EC to the units like appellant's unit. Hence, it cannot be said that appellant is violating any law under the provisions of EIA 2006. In all fairness like OA 55/2019 (WZ) (supra) respondent - AQM Commission ought to have allowed an year's time to appellant to obtain EC which it has failed and it shows pre-determination manner and hasty action on its part to cause major inconvenience and loss to appellant's unit. Appellant's unit has stopped operation after receiving order dated 05.05.2022. Order of AQM Commission is pre- meditated, mala-fide and egregious series of actions in colorable exercise of power by passing closure order again and again. It is also said that on 28 07.05.2022, officials of RSPCB have sealed DG sets and electrical panels at appellant's unit at Alwar.
Additional affidavit dated 08.06.2022 filed on 09.06.2022 by appellant in Appeal II
36. Appellant has filed additional affidavit bringing on record Supreme Court's judgments dated 25.03.2022 passed in M/s. Pahwa Plastics Pvt. Ltd. vs. Dastak NGO, Civil Appeal No. 4791/2021, 2022 SCC OnLine SC 362 and 09.12.2021 passed in Electrosteel Steels Ltd. vs. Union of India, Civil Appeal Nos. 7576-7577 of 2021, 2021 SCC OnLine SC 1247 in support of his pleadings that EC can be granted retrospectively also and there is no complete bar.
Proceeding of Tribunal, Principal Bench
37. The matter was taken up during summer vacations at Principal Bench of Tribunal on the ground that there is urgency in matter. Both appeals were taken up on 09.06.2022. Learned counsels for parties agreed that it would be better if appeals are heard finally on merit at earlier date. Consequently, AQM Commission was granted a short and reasonable time to file reply and appeals were directed to be placed on Board on 17.06.2022 for final hearing.
Reply/Counter Affidavit dated 13.06.2022 by AQM Commission filed on 15.06.2022 in Appeal II
38. It has referred to reply already submitted in Appeal I. Additional facts emerged subsequently are stated in para 6 to 15, as under:
"6. That in the aforesaid appeal No. 04 of 2022 this Hon'ble Tribunal vide order dated 29.03.2022 directed the appellant to appear before the replying respondent on 18.04.2022 and also directed the replying respondent to take a decision, on the stand of the appellant in accordance with law and allowed the petitioner to resume operations, pending further consideration by the replying respondent.
7. That in compliance of the orders of this Hon'ble Tribunal, the replying respondent considered the submissions and objections 29 of the appellant, gave proper opportunities of hearing the appellant and also got the unit re-inspected on 21.04.2022 and after due evaluation, passed the final order dated 05.05.2022 for the closure of unit and the unit is closed since then.
8. That thereafter, both the Appeals No. 04 of 2022 and 11 of 2022 were listed together before this Hon'ble Tribunal on 20.05.2022, on which this Hon'ble Tribunal after hearing both the parties and in view of order dated 05.05.2022 vacated the interim order dated 29.03.2022 and transferred both the appeals before the Hon'ble Principal Bench New Delhi which are now registered as Appeal No.29 of 2022 (Old No.11 of 2022) and Appeal No.28 of 2022 (Old No.4 of 2022).
9. That thereafter the appellant also filed a Writ Petition (Civil) No.9303 of 2022 before the Hon'ble High Court of Delhi for interim relief to resume operation, but the said writ petition was disposed of by the Hon'ble High Court vide order dated 03.06.2022, without granting any interim relief to the appellant but with a direction to list appeals of the appellant before vacation bench of this Hon'ble Tribunal.
10. That the Hon'ble Tribunal vide its order dated 09.06.2022 noted the submissions of counsel of the appellant admitting that the industry, though had also run on the identified days of the week for closure of operations, the appellant had paid compensation and an appropriate penalty as fixed by the Rajasthan State Pollution Control Board for violation of direction. No. 49 dated 15.12.2021, issued by the Commission.
11. That during further examination it emerged that besides running with an expired CTO, appellant has so far also not obtained the environmental clearance (EC) under EIA Notification, 2006. However, the appellant has now applied for an environmental clearance before the appropriate authority. The decisions on application of EC and CTO are to be taken by the Ministry of Environment, Forest and Climate Change and by the Rajasthan State Pollution Control Board respectively.
12. That Hon'ble Tribunal vide order dated 29.03.2022 had allowed the appellant to resume operations and directed the Commission for Air Quality Management to take a decision on the stand of the appellant in accordance with law.
13. That in furtherance to the aforesaid order, the Commission, after providing sufficient opportunities of hearing to the appellant and considering the submission made by the appellant and documents on record and relevant order/judgments of Hon'ble Supreme Court and NGT on the aspect passed an order dated 05.05.2022 in compliance of Hon'ble Tribunal's order in accordance with law.
14. That the appellant has not only failed to comply with the order of Hon'ble NGT and the statutory obligation of obtaining a clearance under the Environment (Protection) Act, 1986 but also did not get the 'consent to operate' renewed by the RSPCB, since expiry of the CTO on 31.07.2021.30
15. It is submitted that not obtaining mandatory statutory clearance or permission under environmental laws including the Air (Prevention and control of pollution) Act, 1981 and Environment (Protection) Act, 1986 can lead to serious damage to the environment including air quality in the region and no provision under the extant environment laws permits the unit of appellant to run with an expired CTO and/or in absence of an environmental clearance."
Rejoinder by appellant dated 15.06.2022 filed on 16.06.2022 in Appeal II
39. Appellant has filed rejoinder in Appeal II and therein virtually the grounds taken earlier have been repeated. In fact, rejoinder is more in the nature of written submission, wherein the issues raised by appellant have been crystalized and explained. Instead of placing contents of rejoinder in our own words, we find it appropriate to reproduce the content of rejoinder:
"4. The Impugned Orders dated 05.05.2022 and 21.01.2022 are both liable to be set aside for the following reasons:
A. No requirement of Environmental Clearance under EIA Notification, 2006 (amended to date) in respect of the Appellant 4.1 The Environmental Impact Assessment (EIA) Notification was introduced on 14.09.2006, placing a requirement of prior environmental clearance on a number of sectors. The EIA Notification 2006 has notified a list of sectors as A or B based on their capacity and likely environmental impacts. True Copy of EIA Notification 2006 and 2009 amendment is annexed herewith and marked as Annexure - "A" Colly.
4.2 The EIA Notification 2006 did not provide for any definition of "Secondary Metallurgical Processes" and this resulted in uncertainty regarding applicability of EIA. Even if it is assumed that the works done by Appellant amounts to Secondary Metallurgical Processes, Clause 3(a) provides for thresholds regarding requirement of prior EC. Clause 5(2) which provides the general conditions for applicability which are as follows:
Project or Activity Category with Threshold
A B Condition if any
3 Materials Production
(1) (2) (3) (4) (5)
3(a) Metallurgical a) Primary Sponge iron General Condition
industries metallurgical manufacturing shall apply note:
(ferrous & industry <200TPD
non ferrous) i) the recycling
All projects Secondary industrial units
metallurgical registered under
processing the HSM Rules, are
industry exempted.
31
b) Sponge iron
manufacturing i) All toxic and ii) In case of
>200TPD heavy metal secondary
producing metallurgical
c) Secondary units <20,000 processing
metallurgical tonnes/annum industrial units,
processing those projects
industry ii) All other non- involving operation
toxic of furnaces, only
All toxic and secondary such as induction
heavy metal metallurgical and electric arc
producing processing furnaces,
units > 20,000 industries submerged arc
tonnes/annum >5000 furnace and cupola
tonnes/annum with capacity more
than 30000 tonnes
per Annum (TPA)
would requirement
environment
clearance.
iii) Plants/units
other than power
plan (given against
entry no. 1(d) of the
schedule) based on
municipal solid
waste (non-
hazardous) are
exempted.
4.3 As per the thresholds provided under the EIA Notification 2006, clearly provides that only such induction furnaces with capacity of more than 30,000 tonnes per annum (TPA). Thus, from the aforesaid notification, it is clear that the requirement for obtaining Environmental Clearance does not apply to the Appellant unit which admittedly has the capacity of 27,000 tonnes per annum. The capacity of Appellants unit is recorded as 27,000 tonnes per annum under Clause 7 of the consent to operate dated 21.06.2018 (Page 51 of Appeal).
4.4 This specific objection regarding Appellant's business not falling within threshold was taken in Para 12(g) to 12(h) of the written representation submitted before the Respondent No. 1 Commission pursuant to NGT's Order dated 29.03.2022. True Copy of Written Representation submitted by Appellant pursuant to Order dated 29.03.2022 filed before Commission for Air Quality Management is annexed herewith and marked as Annexure 'B'.
4.5 It is notable that in the Impugned Order dated 05.05.2022, the Commission although has noted the submission to non-
applicability of thresholds in Para 17(6), no specific finding has been given regarding non applicability of thresholds under Clause 3(a) of Schedule to EIA Notification 2006. The Impugned Order is liable to be set aside on this ground alone. Further, MoEF has also issued DRAFT Notification dated 23.03.2020 for Environmental Impact Assessment. Section 26(25) of Draft Notification provides that there shall be an exemption for standalone re-rolling mills (which does not involve pickling operations) with a capacity of upto 2 Lakh Tonnes per annum. Further, the thresholds prescribed are above the production 32 capacity of the Appellant Company. True Copy of MoEF Draft EIA Notification dated 23.03.2020 is annexed herewith and marked as Annexure 'C'.
B. Violation of principles of Natural Justice in respect of findings regarding applicability of Environmental Clearance 4.6 It is settled law that a Show Cause Notice must clearly and specifically allege the violations and the resultant consequences thereof. In the present matter, Original Closure Order dated 21.01.2022 (Page No. 107 to 109) only alleged two counts of violations i.e. breach of Commission's Directive No. 49 and running the unit even after expiry of consent to operate (CTO) which expired on 31.07.2021. Not a word was mentioned regarding applicability and requirement for Environmental Clearance (EC) under EIA Notification 2006.
4.7 No specific notice was issued at any juncture, despite the order dated 29.03.2022 of NGT regarding alleged violation on count of not having a valid EC. While passing reasons to justify the closure, the Respondent No. 1 Commission has travelled beyond its original closure order dated 21.01.2022. It has manufactured anew ground to justify closure. No specific notice regarding EC has ever been issued to the Appellant.
4.8 The findings regarding Environmental Clearance was a mere afterthought on the part of Commission to justify its closure order dated 21.01.2022. As this exercise was done without any show cause or specific notice, the Impugned Order dated 05.05.2022 deserves to be set aside.
C. No clarity regarding applicability of Environmental Clearance on Hot Rolling Mills till 13.04.2022 4.9 The Appellant has been running its Hot Re-rolling Mill since year 2006. The EIA Notification came in effect in September 2006. There was never any requirement in place regarding applicability of EIA Notification to the nature of Hot Re-rolling activity carried on by the Appellant. For this reason alone, the latest Consent to operate (CTO) was issued under the provisions of Water Act and Air Act on 21.06.2018 valid uptill 31.07.2021.
4.10 This position would be clear from a perusal of a few correspondences which are as follows:
(a) 13.12.2010 (Page 203 - 204): This is a letter issued by Ministry of Environment & Forest specifically clarified in Para 4 and 5 that Secondary Metallurgical Processing Industrial Unit involving operation of Re-heating furnace does not attract the provisions of EIA notification.
(b) 04.12.2018 (Page 205-206): This is a letter issued by Central Pollution Control Board to the Impact Assessment Division of MoEF & CC (in respect of a clarification sought by Chhattisgarh Steel Re-Rollers Association), wherein it was clarified that the stand alone steel re-rolling mill does 33 not appear to be covered under EC Notification, which is applicable on primary and secondary metallurgical processing unit.
(c) 12.02.2020 (Page 207-214): Hon'ble NGT passed a Judgment dated 12.02.2020 in the matter of Gajubha Jesar Jadeja Vs Union of India. This Judgment was applicable in respect of mills producing Cold Rolled Coils (CRC) and it was directed as follows:
"12. It would appear from the sequence of events that the position that subsisted earlier in respect of Cold Rolled Coils (CRC) of stainless steel was quite obscure as it was not clear as to whether such activity would require environmental clearance under the EIA Notification 2006. The MoEF upon consideration of the expert opinion appears to have now clarified that such industry do require prior environmental clearance but, having regard to the fact that there were a large number of such mills operating on the strength of CTE and CTO, opportunity should be provided to such units to fall within the EC regime by granting a period of at least one year to operate for the purpose."
(d) 22.10.2020 (Page 216-217): This communication was issued pursuant to the aforementioned Judgment of Hon'ble NGT in Gajubha Jesar Jadeja Vs Union of India. In this correspondence, it was clearly admitted by MoEF in Para 2 that there is a further need for clarifying if EIA notification is applicable only to Cold Rolling or to all Rerolling Mills.
(e) 08.03.2022 (Page 220-221): A representation was filed by Bhiwadi Rolling Mills Association seeking clarification regarding applicability of Hon'ble NGT's Order to all ReRolling Mills.
(f) 23.02.2022 (Page 235-236): There was still lack of clarity regarding applicability of Environmental Clearance on all Rolling Mills. It was specifically pointed out that the Respondent No. 1 Commission has withdrawn all closure directions except one unit i.e. of the Appellant. It was also mentioned that there is a lot of confusion amongst operators of Re-heating furnaces and rolling operations about applicability to obtain environmental clearance. When the regulator of the Appellant i.e. RSPCB itself was unclear, there is no basis to insist on prior EC.
(g) 13.04.2022 (Page 238-239): It is only on 13.04.2022 that the applicability of EIA Notification 2006 was clarified by MoEF&CC to the Respondent No. 2. In Para 2 and 4 it was clarified that even a Hot Re-rolling Mill shall attract the provisions of EIA.
4.11 In view of the aforementioned exchange of correspondences it would be clear that applicability of requirement of EC was authoritatively clarified only on 13.04.2022 (Page 238-239) by 34 the MoEF&CC. Appellant is entitled to parity of treatment as was granted to all Col Re-rolling Mills (vide order dated 12.02.2022 Para No. 12) of one year from 13.04.2022 to ensure this compliance. This submission is without prejudice to the objection that Appellant's unit does not meet the threshold for obtaining an EC under the EIA Notification.
D. The Order of Closure amounts to penalty greater than that is prescribed under the law in force.
4.12 It is basic tenet of law and principles of natural justice that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force. The Respondent No. 1 Commission has already decided and collected the maximum permissible penalty for the alleged violation of running the unit on days earmarked for keeping the Unit inoperative (Directive No. 49).
4.13 On 02.02.2022 (Page No. 111) it is clearly mentioned that the Respondent No. 1 Commission has already (without even issuance of Show Cause) decided to impose a heavy penalty / Environmental Compensation on the Appellants Unit. The relevant portion of Order dated 02.02.2022 issued by the Respondent No. 1 Commission reads as follows:
"2. The penalty for gross violation of statutory Directions of the Commission, (including direction no. 49) needs to be seen as deterrent against non-compliance of the statutory directions of the Commission and to be recovered from the defaulting units/entities before permitting them to resume operations.
3. In view of the above all SPCBs/DPCC are required to impose and collect a suitable amount of EC by appropriately revising the 'R' factor and calculating 'N' factor in the EC formula of CPCB based on the number of days of actual violation of direction No. 49 of the Commission besides the number of days of operation before the unit closed its operation pursuant to the closure direction of the commission"
This Order clearly mentioned that resumption of operation shall be allowed after payment of compensation. Once the Compensation has been paid and accepted, it is now not open for Respondent No. 1 to continue close on same ground. 4.14 On 07.02.2022 (Page 112-113) a detailed order was passed by Rajasthan State Pollution Control Board deciding the penalty for running the unit with an expired consent to operate and violation of Directive No. 49. It is clearly mentioned in Para 9 of the Order dated 07.02.2022 that a cumulative penalty of Rs. 2,41,875/- was imposed under Section 33A of Water Act and Section 31A of Air Act.
4.15 On 07.02.2022 (Page 114-116) the entire Environmental Compensation Penalty of Rs. 2,41,875/- has already been paid by the Appellant. Payment of penalty has been acknowledged by 35 Respondent No. 2. Thus, after having collected the maximum penalty, for both counts of alleged violations, there is no basis to continue closure of the Appellant's unit, as has been done vide Order dated 05.05.2022.
E. Renewal Application for Consent to Operate well within time AND "Deemed Consent" under Section 25(7) of Water Act and Section 21(1) of Air Act 4.16 The Consent to Operate is issued by the Respondent No. 2 under Section 25 / 26 of Water Act and Section 21 of Air Act. On 21.06.2018, the last Consent to Operate (CTO) was issued in favour of the Appellant, valid uptill 31.07.2021. 4.17 The Application for renewal of CTO, complete in all respects, was submitted on 10.03.2021 (Page 74 - 92). The application was done more than 3 months before the due date of expiry. Till date the Application for CTO has not been rejected. In these circumstances, the Appellant is entitled for deemed consent as provided under Section 25(7) of the Water Act and Section 21(1) of the Air Act.
4.18 Even if it is assumed that the Appellant cannot be give the benefit of "Deemed Consent", it must be noted that the said consent was not being issued under the confusion of applicability of Environmental Clearance. This position is admitted by the Rajasthan State Pollution Control Board in its Letter dated 23.02.2022 issued to the Respondent No. 1 Air Commission. (Page 235-236) 4.19 The Appellant cannot be faulted for delay in grant of CTO (applied more than 120 days before its expiry) for the time taken by Rajasthan State Pollution Control Board in issuance of the Consent. Besides this, the entire Environmental Compensation for alleged violation has already been collected. F. Closure Order is not justified for alleged violation of Directive No. 49 4.20 On 15.12.2021, a directive was issued by Respondent No. 1 Commission regarding not keeping the Industrial Units in NCR operative for two days a week. As per Clause 12(c) of Directive dated 15.12.2021 (See Page No. 52-55 of Counter Affidavit in Appeal No. 04 of 2022). As per Clause 12(c), the Appellant's Unit was to be kept inoperative on Thursdays and Fridays. 4.21 Clause 12(i) and (ii) provide for "Closure". On the other hand Clause 12(iii) provides for keeping the unit inoperative, meaning thereby, there was no impediment on carrying on trial testing and maintenance activities. The Closure order dated 21.01.2022 was passed without sharing a copy of Investigation Report or even a Show Cause Notice. No material was placed for rebuttal of Appellant alleging manufacturing being carried out in the unit.
4.22 In the later reasons supplied vide order dated 05.05.2022 (in Para No. 25) some inferences have been drawn by the 36 inspection team on the basis of electricity consumption data acquired through Jaipur Vidyut Vitran Nigam Limited. An inference has been drawn on the basis of electricity consumption alleging that manufacturing process was undertaken on the days earmarked for keeping the unit inoperative. This data was never given under a specific show cause to the Appellant till date. The Appellant was never confronted with this question vide the closure order dated 21.01.2022. The Respondent No. 1 ought to have appreciated that Re-heating furnaces require maintenance to be carried out from time to time and the directive no. 49 (Clause 12(iii)) had only prohibited manufacturing and not trial and testing activities on the days earmarked for closure.
4.23 Nevertheless, no further consequences can be imposed for alleged violation of Directive No. 49 as the compensation (Maximum penalty) imposable has already been paid on 07.02.2022. After having collected the penalty (Environmental Compensation) there is no basis to continue with the Closure Order.
G. Impugned Order is in Violation of law laid down by the Hon'ble Supreme Court 4.24 It is also relevant to place reliance on some of the observations by Hon'ble Supreme Court in the matter of M/s Pahwa Plastics Private Limited Vs. Dastak NGO NGO - Civil Appeal No. 4791 of 2021 (decided on 25.03.2022), which are as follows:
54. The manufacturing units of the Appellants appoint about 8,000 employees and have a huge annual turnover.
An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution.
...
56. As held by this Court in Electro steel Steels Limited (supra) ex post facto Environmental Clearance should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of a Notification under the EP Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of mines, running factories and plants.
"57. The 1986 Act does not prohibit ex post facto Environmental Clearance. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed 37 in the project and others dependent on the project, if such projects comply with environmental norms.
60. Even though this Court deprecated ex post facto clearances, in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units. This Court held:-
"However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court."
64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required.
65. It is reiterated that the 1986 Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible. As observed by this Court in Electrosteel Steels Limited (supra), this Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units in their survival.
66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate."
4.25 Further, it is also relevant to place reliance on the observations of the Hon'ble Apex Court in the matter of Electrosteel Steels 38 Limited Vs Union of India - Civil Appeal Nos. 7576-7577 of 2021 (decided on 09.12.2021), which are as follows:
82. The question is whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down for the technical irregularity of shifting its site without prior environmental clearance, without opportunity to the establishment to regularize its operation by obtaining the requisite clearances and permissions, even though the establishment may not otherwise be violating pollution laws, or the pollution, if any, can conveniently and effectively be checked. The answer has to be in the negative.
84. The 1986 Act does not prohibit ex post facto Environmental Clearance. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in over view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.
87. The Notification being SO 804(E) dated 14th March, 2017 was not an issue in Alembic Pharmaceuticals (supra). This Court was examining the propriety and/or legality of a 2002 circular which was inconsistent with the EIA Notification dated 27th January, 1994, which was statutory. Ex post facto environmental clearance should not however be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of ex post facto approval outweigh the consequences of regularization of operation of an industry by grant of ex post facto approval and the industry or establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. Ex post facto approval should not be withheld only as a penal measure. The deviant industry may be penalised by an imposition of heavy penalty on the principle of „polluter pays‟ and the cost of restoration of environment may be recovered from it.
88. We are of the view that the High Court erred in passing the impugned order, vacating interim orders which had been in force for two years. The impugned order is not in conformity with the principle of proportionality. This is not a case where the steel plant was started without environmental clearance or consent of JSPCB. The Appellant had applied for and obtained environmental clearance to set up an integrated steel plant (3MTPA) on 1350 acres of land at Mauza South Parbatpur, as observed above. Environmental Clearance had been granted on 21st February 2008 and Consent to Operate had been granted by JSPCB on 5th May 2008.39
95. The appeals are allowed. The impugned order is set aside.
The Respondent No.1 shall take a decision on the application of the Appellant for revised EC in accordance with law, within three months from date. Pending such decision, the operation of the steel plant shall not be interfered with on the ground of want of EC, FC, CTE or CTO."
5. This Hon'ble Tribunal vide its Order dated 29.03.2022 had only directed the Respondent No. 1 to hear and give reasons for Closure Order dated 21.01.2022. It was not a carte balance to manufacture new grounds to justify closure (such as Environmental Clearance under EIA) which has been purportedly done. Besides, once the adequate and deterrent penalty has already been accepted for both counts of alleged violations mentioned in Closure Order dated 21.01.2022 (and accepted by Respondents), it is not open for them to continue with closure of Appellants Unit.
6. There are more than 300 workers employed by the Appellant. Life and livelihood of hundreds of families are at stake due to this closure order.
7. That by way of abundant caution and to obviate any further allegations of violation, the Appellant has already applied for Environmental Clearance (EC) vide application dated 10.05.2022. Acknowledgement of complete application was received by Appellant on 10.06.2022. Further, a notification has been issued stating that its request alongwith proposal shall be placed for consideration in the next EAC Meeting dated 13/14 June 2022. These documents have been filed alongwith Additional Affidavit dated 08.06.2022 before this Hon'ble Tribunal.
8. That decision of Respondent No. 1 to keep the Unit closed till receipt of EC is in egregious violation of the mandate of Hon'ble Supreme Court in the matter of Electrosteel Steels Limited Vs Union of India
- Civil Appeal Nos. 7576-7577 of 2021 (decided on 09.12.2021) (Para No. 82 - 95) and in in the matter of M/s Pahwa Plastics Private Limited Vs. Dastak NGO NGO-Civil Appeal No. 4791 of 2021 (decided on 25.03.2022)."
Reply dated 16.06.2022, filed by RSPCB i.e. respondent 2 on 17.06.2022 in Appeal II
40. It is a short reply in which it is said that the same is being filed only in compliance of order dated 09.06.2022 to clear its stand in respect of compliance with reference to environmental norms, use of cleaner fuel as per direction 49 of AQM Commission and reason for not granting consent and delayed action on account of whether EC was required or not. It is said that last stack monitoring was conducted by RSPCB on 24.12.2019 when particulate matter was found within prescribed 40 limits of 150 mg/Nm3. Observed value of particulate matter was 142 mg/Nm3. Regarding cleaner fuel, RSPCB vide Office Order dated 13.04.2022 has granted further time to the units till 30.09.2022 to convert to use of cleaner fuel or biomass fuel where PNG supply is available. Regarding grant of consent and its delayed action, RSPCB has said that in compliance of NGT order dated 12.02.2022 passed in OA 55/2019 (WZ) and MoEF&CC letter dated 22.10.2020, industry was directed vide RSPCB letter dated 24.12.2020 to apply for EC and get covered under EIA 2006 and submit a copy of the same to RSPCB. Industry applied for renewal of Consent to Operate on 10.03.2021 without requisite EC. In this regard, industry was also issued show cause notices vide letters dated 06.07.2021 and 16.08.2021. M/s. RSSL has applied for EC on 10.05.2022 which is awaited and, therefore, Consent to Operate is pending. ARGUMENTS
41. After hearing the arguments on two days, i.e., 17.06.2022 and 21.06.2022, the order was reserved. While reserving the order, we permitted the parties to file written submissions. Appellant as well as AQM Commission have filed written submission while RSPCB has filed an application dated 24.06.2022 to take on record certain documents. Oral arguments advanced by Learned Counsels on behalf of appellant and AQM Commission are same as stated in their written submissions which we are referring hereunder.
42. We have heard Mr. Sanjay R. Hegde, Senior Advocate with Mr. Anand Shankar Jha and Mr. Arpit Gupta, Advocates for appellant; Dr. Abhishek Atrey and Mr. Vaibhav Kandpal, Advocates for respondent 1 and Mr. Sandeep Singh Baghel, Advocate for RSPCB i.e. respondent 2, purused record including written submissions, relevant statutory provisions and various judgments including judgments of Supreme Court and this 41 Tribunal relied and cited by parties as also legal precedents and other material throwing light on issues in question, available in public domain. Written submission dated 23.06.2022 filed by appellant in Appeal I and II
43. Appellant has filed written submission assailing the orders dated 21.01.2022 and 05.05.2022. The grounds taken in written submissions are as under:
"A. Adjudicating Authority (R-1) cannot travel beyond the Show Cause Notice/ Original Closure Order while passing Final Order.
5. It is settled law that a Show Cause Notice must clearly and specifically allege the violations and the resultant consequences thereof. It is equally trite law that an Adjudicating Authority cannot travel beyond the scope of show cause notice (in this case Original Closure Notice). In the present matter, Original Closure Order dated 21.01.2022 (Annexure A/4) only alleged two counts of violations i.e. breach of Commission's Directive No. 49 and running the unit even after expiry of Consent to Operate (CTO) which expired on 31.07.2021. The Inspection report dated 17.01.2022 (Annexure A/10) (furnished on 18.04.2022 did not report any finding regarding applicability of Environmental Clearance (EC) under EIA Notification 2006.
6. No specific notice was issued at any juncture for not having a valid EC. While passing reasons to justify the closure, the Respondent No. 1 Commission has travelled beyond its Original Closure Order dated 21.01.2022. It has manufactured a new ground to justify closure. No specific notice regarding EC has ever been issued to the Appellant.
7. The findings regarding EC was a mere afterthought on the part of Commission to justify its closure order dated 21.01.2022.
As this exercise was done without any show cause or specific notice, the Impugned Order dated 05.05.2022 deserves to be set aside B No Clarity regarding applicability of Environmental Clearance on Hot Rolling Mills till 13.04.2022
8. The Appellant has been running its Hot Re-rolling Mill since year 2007. The EIA Notification came in effect in September 2006. There was never any requirement in place regarding applicability of EIA Notification to the nature of Hot Re-rolling activity (and thresholds) carried on by the Appellant. For this reason alone, the latest Consent to operate (CTO) was issued under the provisions of Water Act and Air Act on 21.06.2018 valid uptill 31.07.2021.
42
9. This position would be clear from a perusal of a few correspondences which are as follows:
(a) 13.12.2010 (Page 203-204): This is a letter issued by MoEF specifically clarifying in Para 4 & 5 that Secondary Metallurgical Processing Industrial Unit involving operation of Re-heating furnace does not attract the provisions of EIA notification.
(b) 04.12.2018 (Page 205-206): This is a letter issued by Central Pollution Control Board (CPCB) to the Impact Assessment Division of MoEF & CC (in respect of a clarification sought by Chhattisgarh Steel Re-Rollers Association), wherein it was clarified that the stand alone steel re-rolling mill does not appear to be covered under EC Notification, which is applicable on primary and secondary metallurgical processing unit.
(c) 14.08.2019 (Pg. 234) - A clarification was issued by MoEF to the Chairman, State EIA Authority Chhattisgarh advising that requirement of EC is applicable only for given type of furnaces with production capacity of more than 30,000 TPA. However, there was no threshold for the Re-Heating Furnaces.
(d) 12.02.2020 (Page 207-214): Hon'ble NGT passed a Judgment dated 12.02.2020 in the matter of Gajubha Jesar Jadeja vs Union of India. This Judgment was applicable in respect of mills producing Cold Rolled Coils (CRC) and it was directed as follows:
"12. It would appear from the sequence of events that the position that subsisted earlier in respect of Cold Rolled Coils (CRC) of stainless steel was quite obscure as it was not clear as to whether such activity would require environmental clearance under the EIA Notification 2006. The MoEF upon consideration of the expert opinion appears to have now clarified that such industry do require prior environmental clearance but, having regard to the fact that there were a large number of such mills operating on the strength of CTE and CTO, opportunity should be provided to such units to fall within the EC regime by granting a period of atleast one year to operate for the purpose."
(e) 22.10.2020 (Page 216-217): This communication was issued pursuant to the aforementioned Judgment of Hon'ble NGT in Gajubha Jesar Jadeja Vs Union of India. In this correspondence, it was clearly admitted by MoEF in Para 2 that there is a further need for clarifying if EIA notification is applicable only to Cold Rolling or to all Re- rolling Mills.
The first step to begin implementation of NGT Order in Gajubha Jaser Jadeja started only on 22.10.2020, 8 months after the Order, when a list of all industries 43 requiring EC was sought by MoEF from all Pollution Control Boards.
(f) 24.12.2020 (Annexure A/20): RSPCB issued a Letter to the Appellant stating that the Appellant has to take EC, if applicable. A reply to this was submitted by the Appellant on 02.02.2021 stating that requirement of EC and the Judgement of NGT was only applicable for cold rolling mills and not the Appellant, which is a hot rolling mill (Letter dated 02.02.2021 is enclosed).
(g) Further, a Letter dated 17.06.2021 was submitted by the Appellant stating that requirement of EC is not applicable. (Letter dated 17.06.2021 is enclosed).
(h) 06.07.2021 & 20.07.2021 - RSPCB issued another Letter to obtain EC. The Appellant submitted another reply stating that requirement of EC is not applicable. Till date the application for CTO renewal or the reply submitted by the Appellant has not been rejected by RSPCB. (Letter dated 17.06.2021 is enclosed).
(i) 16.08.2022 and Reply dated 28.08.2021 - On 16.08.2021 RSPCB issued another mechanical reminder seeking EC to be furnished. In response, on 28.08.2021, Appellant referred to its earlier replies dated 20.07.2021, 17.06.2021 and submitted that the requirement of EC is not applicable to them. (Letter dated 16.08.2022 and Reply dated 28.08.2021 are enclosed).
(j) 08.03.2022 (Annexure A/21): A representation was filed by Bhiwadi Rolling Mills Association seeking clarification regarding applicability of Hon'ble NGT's Order to all Re Rolling Mills.
(k) 23.02.2022 (Annexure A/22 - 235-236): There was still lack of clarity regarding applicability of EC on all Rolling Mills. It was specifically pointed out that the Respondent No. 1 Commission has withdrawn all closure directions except one unit i.e. of the Appellant. It was also mentioned that there is a lot of confusion amongst operators of Re-heating furnaces and rolling operations about applicability to obtain EC. When the regulator of the Appellant i.e. RSPCB itself was unclear, there is no basis to insist on prior EC.
(l) 13.04.2022 (Page 238-239): It is only on 13.04.2022 that the applicability of EIA Notification 2006 was clarified by MoEF & CC to RSPCB. In Para 2 and 4 it was clarified that even a Hot Re-rolling Mill shall attract the provisions of EIA.
10. In view of the aforementioned correspondences it would be clear that applicability of requirement of EC was authoritatively clarified only on 13.04.2022 (Page 238-239) by the MoEF & CC. Appellant is entitled to parity of treatment as was granted to all Cold Rerolling Mills (vide order dated 44 12.02.2022 Para No. 12) of one year from 13.04.2022 to ensure this compliance.
11. It is worth mentioning in the list of industries furnished by RSPCB vide affidavit 20.06.2022, the industries described at Serial No. 2, 3, 4, 5, 7, 17, 25, 27 have applied for EC on or after January 2021 have not yet obtained EC till date. Appellant has also now applied for EC, and thus the Appellant should also be allowed to run its operations pending EC. This submission is without prejudice to the objection that Appellant's unit does not meet the threshold for obtaining an EC under the EIA Notification.
D. The Order of Closure amounts to penalty greater than that is prescribed under the law in force.
12. It is basic tenet of law that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force. The Respondent No. 1 Commission has already decided and collected the maximum permissible penalty for the alleged violation of running the unit on days earmarked for keeping the Unit inoperative (Directive No. 49).
13. On 02.02.2022 (Page No. 111) Respondent No. 1 has already (without even issuance of Show Cause) decided to impose a heavy penalty / Environmental Compensation on the Appellants Unit. The relevant portion of Order dated 02.02.2022 issued by the Respondent No. 1 Commission reads as follows:
"2. The penalty for gross violation of statutory Directions of the Commission, (including direction no. 49) needs to be seen as deterrent against non-compliance of the statutory directions of the Commission and to be recovered from the defaulting units/ entities before permitting them to resume operations.
3. In view of the above all SPCBs / DPCC are required to impose and collect a suitable amount of EC by appropriately revising the 'R' factor and calculating 'N' factor in the EC formula of CPCB based on the number of days of actual violation of direction No. 49 of the Commission besides the number of days of operation before the unit closed its operation pursuant to the closure direction of the commission"
This Order clearly mentioned that resumption of operation shall be allowed after payment of compensation. Once the Compensation has been paid and accepted, it is now not open for Respondent No. 1 to continue closure on same ground.
14. On 07.02.2022 (Page 112-113) a detailed order was passed by RSPCB deciding the penalty for running the unit with an expired CTO and violation of Directive No. 49. It is clearly mentioned in Para 9 of the Order dated 07.02.2022 that a cumulative penalty of Rs. 2,41,875/- was imposed under 45 Section 33A of Water Act and Section 31A of Air Act. This has been paid & acknowledged (Pg. 114 - 116).
E. Renewal Application for CTO well within time AND "Deemed Consent".
15. The Consent to Operate (CTO) is issued by RSPCB under Section 25/26 of Water Act and Section 21 of Air Act. On 21.06.2018, the last Consent to Operate (CTO) was issued in favour of the Appellant, valid uptill 31.07.2021.
16. The Application for renewal of CTO, complete in all respects, was submitted on 10.03.2021 (Page 74 - 92). The application was done more than 3 months before the due date of expiry. Till date the Application for CTO has not been rejected. In these circumstances, the Appellant is entitled for "Deemed Consent"
as provided under Section 25(7) of the Water Act and Section 21(1) of the Air Act.
17. Even if it is assumed that the Appellant cannot be given the benefit of "Deemed Consent", it must be noted that the said consent was not being issued under the confusion of applicability of EC under EIA regime. This position is admitted by the RSPCB in its Letter dated 23.02.2022 issued to the Respondent No. 1. (Page 235-236)
18. The Appellant cannot be faulted for delay in grant of CTO (applied more than 140 days before its expiry) for the time taken by Rajasthan State Pollution Control Board in issuance of the Consent. Besides this, the entire Environmental Compensation for alleged violation has already been collected. F. Closure Order is not justified for alleged violation of Directive No. 49
19. On 15.12.2021, a directive was issued by Respondent No. 1 regarding not keeping the Industrial Units in NCR "operative" for two days a week. As per Clause 12(c) of Directive dated 15.12.2021 (Pg 52-55 of Counter Affidavit in Appeal No. 04 of 2022), the Appellant's Unit was to be kept inoperative on Thursdays and Fridays.
20. Clause 12(i) and (ii) provide for "Closure". On the other hand Clause 12(iii) provides for keeping the unit "inoperative", meaning thereby, there was no impediment on carrying on trial testing and maintenance activities. The Closure Order dated 21.01.2022 was passed without sharing a copy of Investigation Report or even a Show Cause Notice. No material was placed for rebuttal of Appellant alleging manufacturing being carried out in the unit. The investigation report dated 17.01.2022 (furnished on 18.04.2022) did not give any finding regarding EC.
21. In the later reasons supplied vide order dated 05.05.2022 (in Para No. 25) some inferences have been drawn by the inspection team on the basis of electricity consumption data acquired through Jaipur Vidyut Vitran Nigam Limited. An 46 inference has been drawn on the basis of electricity consumption alleging that manufacturing process was undertaken on the days earmarked for keeping the unit "inoperative". This data was never given under a specific show cause to the Appellant till date. The Appellant was never confronted with this question vide the closure order dated 21.01.2022. The Respondent No. 1 ought to have appreciated that Re-heating furnaces require maintenance to be carried out from time to time and the directive no. 49 (Clause 12(iii)) had only prohibited manufacturing and not trial and testing activities on the days earmarked for closure.
22. Nevertheless, no further consequences can be imposed for alleged violation of Directive No. 49 as the compensation (Maximum penalty) imposable has already been paid on 07.02.2022. After having collected the penalty (Environmental Compensation) there is no basis to continue with the Closure Order.
G. Thresholds under EIA Notification, 2006 (amended to date) not applicable to the Appellant
23. The EIA Notification was introduced on 14.09.2006, placing a requirement of prior environmental clearance on a number of sectors. The EIA Notification 2006 (as amended) did not provide for any definition of "Secondary Metallurgical Processes" and this resulted in uncertainty regarding applicability of EIA to re-rolling mills.
24. Even if it is assumed that the works done by Appellant (re-
rolling) amounts to Secondary Metallurgical Processes, applicable Clause 3(a) provides for thresholds regarding requirement of prior EC. Clause 5(2) which provides the general conditions for applicability which are as follows:
Product Activity Category with Threshold
A B Conditions if
any
1. 2. 3. 4. 5
3(a) Metallurgical a) Primary Sponge Iron Central
Industries metallurgic al manufacturing conditions shall
(ferrous & non- industry All <200 TDP apply note: i) the
ferrous) Projects Metallurgical recycling
b) Sponge Iron processing industrial units
manufacturing > industry registered under
200 TDP i) All toxic and the HSM Rules,
c) Secondary heavy metal are exempted. ii)
Metallurgical producing In case of
processing <20,000 tonnes / secondary
industry All toxic annum metallurgical
and heavy metal processing
producing > ii) All other industrial units,
20,000 tonnes / nontoxic those projects
annum secondary involving
metallurgical operation of
processing furnaces, only
industries >5000 such as
tonnes/ annum induction and
electric arc
furnaces,
submerged arc
47
furnace and
cupola with
capacity more
than 30000
tonnes per
Annum (TPA)
would
requirement
environment
clearance.
iii) Plants/ units
other than power
plant (given
against entry no.
1(d) of the
schedule) based
on municipal
solid waste (non
hazardous) are
exempted.
25. As per the thresholds provided under the EIA Notification 2006, only such induction furnaces with capacity of more than 30,000 tonnes per annum (TPA). Thus, from the aforesaid notification, it is clear that the requirement for obtaining EC was never applicable to the Appellant, which admittedly has the capacity of its Induction Furnace 27,000 tonnes per annum. The capacity of Appellants unit is recorded as 27,000 tonnes per annum under Clause 7 of the Consent to Operate dated 21.06.2018 (Page 51 of Appeal).
26. Further perusal of the Column No. 5 of the Clause 5(2) of the Notification, it is relevant to note that the word used is "Secondary Metallurgical Industry Processing unit those project involving operation of furnaces only such as induction and electric arc furnace, submerged arc furnace and cupola furnace". The Re-heating Furnace for heating MS ingots/ bullets neither included in the notification nor the same intended to include under the Secondary Metallurgical Industry in as much as CPCB in its letter dated 13.12.2010 (relevant Para 5 Page 203-204).
27. This specific objection regarding Appellant's business not falling within threshold was taken in Para 12(g) to 12(h) of the written representation submitted before the Respondent No. 1 pursuant to NGT's Order dated 29.03.2022. The Commission although has noted the submission to non-applicability of thresholds in Para 17(6) of Impugned Order, no finding has been given regarding non applicability of thresholds under Clause 3(a) of Schedule to EIA Notification 2006. The Impugned Order is liable to be set aside on this ground alone. H. Impugned Order is in Violation of law laid down by the Hon'ble Supreme Court
28. The Impugned Orders are in egregious breach of the law laid down by Hon'ble Supreme Court in M/s Pahwa Plastics Private Limited Vs. Dastak NGO NGO - Civil Appeal No. 4791 of 2021 (decided on 25.03.2022), which are as follows: 48
"57. The 1986 Act does not prohibit ex post facto Environmental Clearance. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.
60. Even though this Court deprecated ex post facto clearances, in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units. This Court held:-
"However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court."
64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required.
65. It is reiterated that the 1986 Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible. As observed by this Court in Electrosteel Steels Limited (supra), this Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units in their survival.
49
66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate."
29. Further, it is also relevant to place reliance on the observations of the Hon'ble Apex Court in the matter of Electrosteel Steels Limited Vs Union of India - Civil Appeal Nos. 7576-7577 of 2021 (decided on 09.12.2021), which are as follows:
82. The question is whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down for the technical irregularity of shifting its site without prior environmental clearance, without opportunity to the establishment to regularize its operation by obtaining the requisite clearances and permissions, even though the establishment may not otherwise be violating pollution laws, or the pollution, if any, can conveniently and effectively be checked. The answer has to be in the negative ...
95. The appeals are allowed. The impugned order is set aside. The Respondent No.1 shall take a decision on the application of the Appellant for revised EC in accordance with law, within three months from date. Pending such decision, the operation of the steel plant shall not be interfered with on the ground of want of EC, FC, CTE or CTO."
30. This Hon'ble Tribunal vide its Order dated 29.03.2022 had only directed the Respondent No. 1 to hear and give reasons for Closure Order dated 21.01.2022. It was not a carte blance to manufacture new grounds to justify closure (such as Environmental Clearance under EIA) which has been purportedly done. Besides, once the adequate and deterrent penalty has already been imposed and paid for both counts of alleged violations mentioned in Closure Order dated 21.01.2022 (and accepted by Respondents), it is not open for them to continue with closure of Appellants Unit. I. Order passed by Air Commission amounts to selectively targeting the Appellant
28. The confusion regarding applicability of EC was all pervasive amongst the re-rolling mills across Rajasthan. This has been admitted by RSPCB in its Letter dated 23.02.2022 written to Air Commission.
29. The Respondent No. 1 Commission has selectively taken action against the Appellant, despite the fact that its emissions (SO2 and NO2) have always been within the limits. As per 50 Directive No. 53, 62, 63 and 64 all the industries in NCR still have time till 31 December 2022 to shift to cleaner fuels.
30. It must be noted that in the course of hearing, RSPCB filed an affidavit dated 20 June 2022 giving a list of several re-rolling mills (Annexure R2/1) in Rajasthan who have till date not applied for EC. Despite this Respondent No. 1 and 2 have never taken any steps against them. This conduct is discriminatory and arbitrary.
31. Upon perusal of Affidavit dated 20.06.2022 filed by RSPCB it would be clear that the CTO of the unit describe at serial No.4, 18, 22, 26, 30 were renewed after the NGTs judgment dated 12.02.2020 in the matter of Gajubha Jesar Jadeja without insisting for EC, yet the CTO of the Appellant was kept pending for want of EC. The unit describe at serial no. 18, 22, 26 and 30 from the above list even have not even applied for EC till date. The treatment with the appellant by both the respondent 1 and 2 was clearly discriminatory on both the counts regarding issue of renewed CTO and closure of Appellant. Undertaking given to the Court by Ld. Senior Counsel for Appellant
32. These appeals were finally heard on 17 June and 21 June 2022. In the course of hearing, Ld. Members sought a clarification, as to what steps are being taken by Appellant to shift to cleaner sources of fuel. In response, following are being submitted for consideration of Hon'ble Tribunal:
(a) The Air Commission vide Directive No. 53, 62, 63 and 64 have given time till 31.12.2022 to all industries to shift to cleaner fuel.
(b) The appellant filed an application dated 25.03.2019 to Haryana City Gas Distribution Ltd, duly acknowledged on 25.03.2019 itself. This copy of the said application was also submitted to Regional Office of RSPCB, Bhiwadi as per their acknowledgment dated 29.03.2019. Copy of Acknowledged Letter dated 25.03.2019 and 29.03.2019 are enclosed herein.
(c) An undertaking was given before Hon'ble Tribunal stating that the appellant is undertaking to totally stop using coal within 8 weeks and thereafter shall run its Re-
heating Furnace when cleaner fuel (like PNG) will be connected to its factory and running its induction furnace on electricity only. It is prayed that the undertaking be accepted and appellant be permitted to resume its operation, so that it can effectively shift to electricity/ cleaner fuel (in place of coal) within 8 weeks.
33. There are more than 300 workers employed by the Appellant.
Life and livelihood of hundreds of families are at stake due to this closure order. The Impugned Order, if not set aside, shall result in civil death of the Appellant Company, in a matter of few weeks.
51
34. That by way of abundant caution and to obviate any further allegations of violation, the Appellant has already applied for Environmental Clearance (EC) vide application dated 10.05.2022. Acknowledgement of complete application was received by Appellant on 10.06.2022. EAC meeting has been held on 13.06.2022 already. Terms of Reference have been issued (Enclosed).
35. The intent of Appellant is to remain fully compliant of all environmental norms. It is only because of lack of clarity and confusion regarding applicability of EC, that the same could not be applied (by the vast majority of re-rolling mills of Rajasthan). This would be clear from Letter dated 23.02.2022 issued by RSPCB to Respondent No. 1. A selective action taken against Appellant is also ex-facie illegal and arbitrary.
36. In view of the aforesaid submissions, the Impugned Order be set aside and the Appellant be allowed to resume its operations."
Written submission dated 24.06.2022 filed by AQM Commission in Appeal I and II
44. AQM Commission virtually has repeated its stand already taken in its reply. However, we reproduce written submissions of respondent 1 as under:
"2. That the Commission for Air Quality Management was constituted under the provisions of the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 for better coordination, research, identification and resolution of problems surrounding the air quality index and for matters connected therewith or incidental thereto and under the Act the Commission has been vested with the power to take all such measures, issue directions and entertain complaints, as it deems necessary or expedient, for the purpose of protecting and improving the quality of the air in the National Capital Region and Adjoining Areas and shall also have the duty to take all such measures as may become necessary for protecting and improving the quality of air in the National Capital Region and Adjoining Areas.
3. That on 2.12.2021 the Commission constituted Enforcement Task Force to monitor and supervise the implementation of statutory directions through surprise inspections of industries and other units within jurisdiction of the Commission.
4. That on 15.12.2021 the Commission direction No.49 in respect of various industries in NCR which have still not shifted to PNG/ cleaner fuels to schedule their operations only for five days a week and industries for this purpose were categorized into three categories as given in para 12 of the direction 49 and the industry of the appellant was to remain closed on Thursday and 52 Friday. (Annexure R-4 at page 52 to 55 to the counter of the replying respondent filed in Appeal No. 28 of 2022 [Earlier Appeal No. 04/2022 (CZ)])
5. It is pertinent to mention here that from 2.12.2021 to 20.6.2022 a total of 6722 incognito / surprise inspections were conducted by the flying squads and 443 closure directions were issued which includes 300 industries, 99 C & D sites and 44 DG Sets and after compliance operation of total 299 units was resumed out of which 229 are industries, 37 are C & D Sites and 33 are D G Sets. In the State of Rajasthan total 51 units were closed and after compliance 36 units were resumed. As such as on 20.6.2022 total 71 industries are still closed under directions of the Commission.
6. That the unit of the appellant was firstly inspected on 17.01.2022, in which it was found that CTO of the unit had expired on 31.7.2021 and it was operating without CTO. It was also found that the unit was also not operating on PNG/cleaner fuels and had also operated on Thursdays and Fridays i.e. on 6th, 7th, 13th and 14th January, 2022 in violation of the Direction No. 49 of the Commission.
7. That after examining the report the Enforcement Task Force the Commission issued closure order dated 21.1.2022 (Annexure R- 6 at page 62 to 64 to the counter of the replying respondent filed in Appeal No. 28 of 2022 [Earlier Appeal No. 04/2022 (CZ)])
8. That thereafter the appellant filed Appeal No.4 of 2022 before this Hon'ble Tribunal against the aforesaid Closure Order dated 21.1.2022, on which this Hon'ble Tribunal vide order dated 29.3.2022 allowed the appellant to resume operations and directed the Commission for Air Quality Management to pass order on the representation of the appellant in accordance with law.
9. That after giving proper opportunity of hearing to the appellant and in further examination of the matter it emerged that the appellant's unit also failed to obtain environmental clearance under EIA Notification 2006 amended from time to time.
10. That since there is no provision under the environment laws which permits the unit of Appellant to run without obtaining mandatory statutory clearance or permission under environmental laws, therefore, the Commission passed final order dated 5.5.2022, which is under challenge in Appeal No.29 of 2022.
11. It is not disputed that regarding violation of direction No.49, the appellant has paid the penalty imposed by RSPCB but in the absence of CTO and EC the operation of the unit of the appellant cannot be resumed. However after order dated 5.5.2022, the appellant has now applied for EC before MOEFCC on 10.5.2022 and it is for MOEFCC to take decision on the issue of environmental clearance and decision on pending application for renewal of CTO has to be taken by the RSPCB.53
12. It is pertinent to mention here that in view of technical requirement of different industrial processes and the then prevailing trend of Air Quality Index the Commission vide direction No.53 dated 4.2.2022 relaxed earlier direction No.49 dated 15.12.2021 thereby allowing all industries who have not shifted to PNG/Cleaner fuel to run 7 days a week subject to the condition that they will switch over to PNG/Biomass fuel latest by 30.9.2022 failing which such industries shall be closed down and shall not be permitted to schedule their operations thereafter. Copy of direction No.53 dated 4.2.2022 is enclosed herewith.
13. It is further submitted here that the Commission again vide Direction No.62 dated 17.03.2022 directed that in respect of industrial areas in NCR where PNG infrastructure and supply is not available, such industries shall also work to completely switch over to bio-mass fuels at the earliest but not later than 31.12.2022. (Copy of direction No.62 dated 17.3.2022 is enclosed herewith.
14. That the Commission, based on representations from certain category of industries citing their applications and technical process requirements call for much higher operating temperatures and/or calorific value of fuels as compared to those achieved through biomass fuels, and subsequently reviewing the levels of emissions generally observed / achieved in respect of existing industries using such fuels viz. metallurgical coke and the family of low Sulphur heavy stock fuels and based on extant related national/international standards, in furtherance to its earlier Direction Nos. 53, 62 and 63 issued Direction No.64 dated 02.06.2022 permitting use of metallurgical coke in standalone cupola based furnaces and family of low Sulphur heavy stock fuels in furnaces for metal heating/smelting/refining purposes respectively, only for regions in the NCR beyond GNCTD, subject to the stricter emission norms and standards, to be complied with through technological upgrades and use of appropriate pollution control devise/system as given in direction No.64 dated 2.6.2022. (Copy of direction No.64 dated 2.6.2022 is enclosed herewith.
15. That however with regard to the case of the appellant it is submitted that there is no provision under the environment laws which permits the unit of appellant to run without obtaining mandatory statutory clearances or permission including the Air (Prevention and control of pollution) Act, 1981 and Environment (Protection) Act, 1986 and therefore the order dated 05.05.2022 passed by the Commission is in accordance with law.
16. That in view of aforesaid facts and circumstances it is most respectfully prayed that this Hon'ble Tribunal may kindly be pleased to dismiss both the appeals of the appellant and may pass such order as may deem fit in the interest of justice."
Application dated 04.06.2022 filed by RSPCB, requesting for taking certain documents on record in Appeal II
45. In this application, RSPCB has said:
54
"3. That, this supplementary affidavit, in instant reply to Appeal submitted on dated 16.06.2022, is being filed on behalf of the Respondent No. 2 placing on record necessary documents as ordered during the hearing by the Hon'ble National Green Tribunal, Principal Bench, New Delhi in the above captioned matter is field as Annexure R-2/A. (List submitted before MoEF as per direction of the Hon'ble NGT).
4. That in the matter of pending applications for consent to operate pertaining to the re-rolling industries as mentioned in 3,5,12,14,15,17,20&28 in the list available in Annexure R-2/A, it is submitted that the MoEF&CC, GOI vide letter J- 11011/326/2010-IA-II(I) dated 13.12.2010 has clarified that secondary metallurgical processing units involving operation of reheating furnace does not attract provision of EIA Notification, 2006 as amended on 01st December, 2009. Subsequently, the order passed by the Hon'ble National Green Tribunal on 12.02.2020 in matter of O.A. No. 55/2019 (WZ) was in the matter w.r.t. an industry having cold rolling operation of reheating furnace) were directed by the State Board to apply for Environmental Clearance and get covered under EIA Notification, 2006 and submit a copy of the same to the State Board.
Thereafter, concerning units and rolling mill association submitted various representations to the State Board stating that "Hon'ble NGT's order is for compliance only by those rolling mills whose processes are same/similar to that of the CSPL (M/s Chromeni Steel Pvt. Ltd.). The process mentioned in the order includes, Acid pickling, acid handling, acid recovery plant, etc. and even an effluent treatment plant for the treatment of waste water containing Hexavalent Chromium....."
Further, the Rajasthan State Pollution Control Board vide letter dated 27.08.2021 sought clarification from neighboring SPCBs as to whether HPCB/PPCB/UPPCB is asking such units to obtain Environmental Clearance or not in compliance of the NGT order dated 12.02.2020. Only Punjab Pollution Control Board replied vide letter dated 27.10.2021 and stated that "Ministry at Sr. No.
(ii), itself admitted that there is scope and need for further clarification in the matter regarding certain issues so that there is no subjective interpretation in future. These issues are (1) definition of secondary metallurgy units for the purpose of EIA process, (2) clarification about the types of furnaces under applicability of MoEF&CC notification, 2006 and (3) clarifying re- rolling v. Cold rolling in the context of Environmental Clearance. Therefore, for further smoothening the EC process for present unit and proposals in future, the MoEF & CC may consider issuing further clarifications. Thereafter, no further clarification is received from MoEF & CC regarding the procedure/modalities to the considered for grant of Environmental Clearance to such industrial units. Thus, RSPCB may approach, Ministry for getting the further clarification in the matter"
Meanwhile, other SPCBs particularly Maharashtra & Karnataka have issued Circulars on 20.07.2021 and 12.10.2021 for obtaining EC by the units on or before 22.10.2021 and 31.10.2021 respectively. Later on due to stage of confusion, a 55 clarification was sought from MoEF & CC, GOI and CPCB, New Delhi by the State Board vide letter dated 09.03.2022. The reply of clarification was received on 13.04.2022 that re-rolling (hot rolling (or) Cold rolling) is one of the processes in the secondary metallurgical industry and attracts the provisions of EIA Notification 2006. Copies of letter/ Circular dated 13.12.2010, 27.08.2021, 27.10.2021, 20.07.2021, 12.10.2021, 09.03.2022 and 13.04.2022 are attached at Annexure R-2/B.
5. That, after getting final clarification in respect of secondary metallurgical processing units involving operation of reheating furnace, State Board has now issued letter on 28.04.2022 to concerning units in this regard. Copy of letter dated 28.04.2022 is attached at Annexure R-2/C."
46. Issues which have arisen in these Appeals, are:
I. What principle of interpretation shall be applicable for interpretation of entries in the Schedule of EIA 2006 as amended from time to time?
II. Whether the industrial unit like appellant was required to obtain EC under EIA 2006?
III. Whether position regarding requirement of EC by industrial units like appellant was not clear up to 13.04.2022 when MoEF&CC submitted reply to RSPCB in reference to the query made by it?
IV. Whether there was any fault on the part of appellant in obtaining EC or it is victim of lack of clarity in the matter?
V. Whether ground of non-availability of EC could have been validly taken into consideration by AQM Commission when it passed order dated 05.05.2022?
VI. Whether there is any violation of principles of natural justice on the part of AQM Commission in passing orders impugned in these Appeals?
VII. Whether there is violation of environmental norms and statutory provisions relating to environment justify AQM Commission to pass orders impugned in these Appeals?56
VIII. Whether appellant is entitled for any relief, if so, what appropriate and remedial order would be justified in these Appeals?
47. ISSUE I: The entire controversy raised in these appeals is substantially founded on the interpretation and scope of item/entry 3(a) in the Schedule of EIA 2006.
48. The issue, in this case, is connected with 'environment'. Environment covers almost every aspect of the cosmos. If we look in the terms of definition, it is difficult to define environment. Its normal meaning relates to surroundings, but obviously, it is a concept which is relatable to whatever object it is, which is surrounded. Einstein had once observed, "the environment is everything that itself me".
49. English term 'environment' has its origin from the French word 'Environner', which means "to surround" or "to encircle". The term 'Environment' is formulated on the word 'Environ' derived from the French word 'Environner', which means "to surround" or "to encircle". Its Dictionary meaning, Etymological Meaning, Literal Meaning and Statutory Meaning can be summarized as under:
Dictionary Meaning: The dictionary meaning of the word 'Environment' is two told.
a) External condition or surroundings especially those in which people live and work.
b) In Ecological sense it means the external surroundings in which a plant or animals lines which to influence its development and behavior.
Etymological Meaning: The word "Environment" in its etymological sense gives the meaning "surroundings, especially the material and spiritual influences which affect the growth, development and 57 existence of a living being it means 'the circumstances or conditions that surround or organism or group organism', or the complex of social or cultural condition that affect an individual or community." Literal Meaning: "The surroundings and conditions under which man lives and works." Thus, in the context of human beings, environment is the sum of all social, economical, biological, physical or chemical factors which constitute the surroundings of man, who is both creator and molder to his own environment. Statutory Meaning: Section 2(a) of EP Act, 1986 defines environment as under:
"Environment includes water, air and Land and the inter- relationship, which exists among and between water, air and land and human beings, other Living creatures, plants, micro- organism and property."
50. India has an ancient tradition of protecting the environment. Most ancient texts teach us that it is the Dharma of each individual in any society to protect nature. This is why people have always worshipped the objects of nature. Trees, water, land and animals have an important mention in our ancient texts. The importance of environment protection in India can be traced back to the period between 321 B.C. and 300 B.C. In Kautiiya's Arthashastra, great importance has been laid on environment protection, and clear punishments have been prescribed on the basis of the importance of various parts of a particular tree. Manusmriti mentions about the optimum use of the resources of nature and also prescribes different punishment for causing injury to plants.
51. The interpretation in this case relates to the provisions enacted for protection, preservation, remediation/restoration of damaged environment. Obviously, the statutes engaging attention are for public welfare in general and protection of environment in particular. A healthy 58 environment is a necessity for every living creature. In this country, environment has been preached as a part of religion so as to give it supreme place in life of human beings. Living in harmony with nature was always an integral part of Indian sub-continent. This is recognized abundantly is in a variety of traditional practices, religious beliefs, rituals and in daily lives of Indian people from time immemorial. In the fundamental doctrines of Hinduism, in particular, there has been a strong tradition of toleration and it embraces diverse thoughts and practices. In Sanskrit, English term 'environment' finds its equalence as 'Paryavaran' but the fact is that the term 'paryavaran' has much wider connotation. Swami Vivekananda said "Religion is the idea which raises the brute unto man, and man unto God". Unfortunately, today earth a creation of God, is suffering due to gross violation of nature due to man's greed.
52. Old Vedic literature discloses intimate relationship between nature and man on umpteen number. Nature has been equated with God as we call a river a 'mother', tree a 'father' and so on. Vedic spheres visualize various aspects of nature, its glamour, regulation, helpfulness, loveliness, virile and unassailable power and sometimes fear caught up their imagination. In the first Mantra of Isopanisad, it is said that God is present in each and every part of this creation and in ancient spiritual tradition, man was looked up as a part of nature. Vedic spiritual speeches that five great elements (Space, Air, Fire, Water and Earth) that constitute environment are all derived from Prakarti, that is the primary energy.
53. In Hinduism, we find that Vedas, Upanishads and other ancient scriptures of the Hindu religion have given great importance to trees, plants and wildlife and also to their value to human beings. The ancient Vedas have several references to environmental protection, ecological 59 balance, weather cycles, rainfall phenomena, hydrologic cycle, and related subjects that directly indicate the high level of awareness of the seers and people of that time.
54. People in Vedic times regarded nature and the environment in a holistic manner and revered each of its constituents and entities by carefully preserving them. In Rigveda, it has been mentioned that there are five elements which give basis to life and these elements are Earth, Water, Fire, Space and Air. The Rigveda makes a clear reference to the presence of a protective layer which we know now to be the ozone layer that filters the harmful rays of the sun and protects the earth. In Yajurveda, it has been mentioned that yajna be performed by offering butter and firewood into the sacrificial fire so that it mixes in the atmosphere and makes the environment free from impurities. It mentions about keeping the sky clean and about praying to the water bodies as they sustain life. The Samaveda like all other Vedas also recognizes the importance of maintenance of the seasons' cycles that are likely to get altered due to climate change owing to inappropriate human actions. In Atharvaveda, there is a clear concept of give and take which means that one can take from the earth and atmosphere only so much as one would give back to them. Many other things are also highlighted in the Atharvaveda like purity of water, protection of wild life and domestication of animals like cattle.
55. In ancient India, philosophers like Chanakya emphasized on the importance of environment protection. In his jurisprudence, the State wets required to maintain forests, fines were imposed for cutting trees and damaging forests, forest reserves were for wild animals and they would be killed or bound in outside the reserve forests when harmful. 60 VEDAS, UPNISHADS AND PURANAS
56. Vedas are universally accepted to be the most precious Indian heritage. The Vedas have knowledge of all types and the main Vedic views revolve around the concept of nature and life. Vedas contained several references on environment conservation, ecological balance and weather cycle. This indicates the high level of awareness of the people at that time.
57. In ancient India, protection and cleaning up of environment was the essence of Vedic culture in Hindu philosophy forests, trees and wildlife protection held a place of special respect. Cutting green trees was prohibited and punishment was prescribed for such acts.
58. The Vedas attach great importance to environmental protection and purity. They persist on safeguarding the habitation, proper afforestation and non-pollution. In fact, man is forbidden from exploiting nature. He is taught to live in harmony with nature and recognize that divinity prevails in all elements, including plants and animals. The rishis of the past have always had a great respect for nature.
59. A verse from rig-veda says, "Thousands and hundreds of years if you want to enjoy the fruits and happiness of life then take up systematic planting of trees".
60. The term pollution did not exist at that time but they call it poisoning of environment. They believe that the five great elements (space, air, fire, water and earth) that constitute the environment are all derived from prakriti, the primal energy and our human body is composed of these and related to these five elements and connects each of the elements to one of the five senses. Human nose is related to earth, tongue to water, eyes to fire, skin to air and ears to space. This bond between our senses and the elements is the foundation of our human relationship with the natural 61 world. For Hinduism, nature and the environment are not outside us. They are an inseparable part of our existence and they constitute our very bodies. Vedas stress the need for protection and development of forests. Human beings have to safeguard the trees. Vedas emphasize that the plants and trees are the treasures for generations. It is amazing that the people in Vedic times regarded nature and the environment in a holistic manner and revered each of its constituents and entities by carefully preserving them. "Do not harm the environment; do not harm the water and the flora; earth is my mother, I am her son; may the waters remain fresh, do not harm the waters". "Do not cut trees, because they remove pollution". (Rig Veda, 6:48:17) "Do not disturb the sky and do not pollute the atmosphere". (Yajur Veda, 5:43) Besides Vedas, Upanishads, Puranas, Sutras and other sacred texts of Hinduism contains a number of references of worship of nature. Our Sanskrit Mantras daily remind us that our rivers, mountains, trees, animals and earth deserve respect and dignity. The Upanishads are a collection of texts that contain some of the central philosophical concepts of Hinduism, some of which are shared with Buddhism and Jainism.
61. Hinduism recognizes that human body is composed of and related to these five elements and connects each of the elements to one of the five senses. Human nose is related to earth, tongue to water, eyes to fire, skin to air and ears to space. This link between our senses and the elements is the foundation of our human relationship with the natural world. For Hinduism, nature and the environment are not outside us. They are an inseparable part of our existence.
A Quote from Vishnu Purana:
"As the wide -
Spreading Nargodha (Sanskrit for Banyan) tree is compressed in a small seed, so at the time of dissolution, the whole universe is comprehended in 62 thee as its germ; as the Nargodha germinates from the seed, and becomes just a shoot and then rises into loftiness, so the created world proceeds from thee and expands into magnitude".
62. The Varah Purana says, "one who plants one Peepal, one Neem, one Bar, ten flowering plants or Creepers, two Pomegranates, two Oranges and five Mangos, does not go to hell".
RAMAYAN, MAHABHARTA AND BHAGVAD GITA
63. Hindu religion also stresses awareness in conservation of trees. in the epic Ramayana Ravana, when faced with calamity, speaks as follows:
"I have not cut down any fig tree in the month of Vaisakh, why then does this calamity befall me?" This serves as a good example to illustrate how Hindus respected trees which constituted a large part of our environment.
In the words of the ancient immemorial Indian poet, Kalidasa: "the Himalaya is a great Devatatma, a great spiritual presence, stretching from the west to the eastern sea like a measuring rod to gauge the world's greatness".
64. Mahabharata hints that the basic elements of nature constitute the cosmic being - the mountains his bones, the earth his flesh, the sea his blood, the sky his abdomen, the air his breath and Agni (fire) his energy. the whole emphasis of the ancient Hindu scriptures is that human beings cannot separate themselves from natural surroundings and earth has the same relationship with man as the mother with her child. Planting and preservation of trees are made sacred in religious functions. "The purchaser of flesh performs Himsa (violence) by his wealth; he who eats flesh does so by enjoying its taste; the killer does Himsa by actually tying and killing the animal. Thus, there are three forms of killing: he who brings flesh or sends for it, he who cuts off the limbs of an animal, and he who 63 purchases, sells or cooks flesh and eats it - all of these are to be considered meat eaters." (Mahabharata).
65. Bhagavad Gita, contains many references to the omnipresence of the supreme divinity, including its presence throughout and within nature. In Sloka 20, chapter 10, Lord Krishna says, "I am the self seated in the heart of all creatures. i am the beginning, the middle and the very end of all beings". All beings have, therefore to be treated alike".
66. In Bhagavad Gita, Lord Krishna compares the world to a single banyan tree with unlimited branches in which all the species of animals, humans and demigods wander.
67. Indian consciousness is full of trees and forests. various trees, fruits and plants have special significance in Hindu ritual. Hindu religious scripts, stories, and rituals have attempted to drive home the importance of preserving nature by deifying it through the centuries. Lord Krishna says in the Bhagavad Gita (9.26): "पत्रं पुष्पं फलं तोयं यो मे भक्त्या प्रयच्छतत | तदहं भक्त्युपहृतमश्नातम प्रयता्मन:" which means that I accept a leaf, flower, fruit or water or whatever is offered with devotion.
68. The coconut tree and coconut are sacred and are offered to god during worship. Mango leaves are used as Festoons during pujas and auspicious events. All flowers and leaves of plants are used during worship for Pushpa puja and patra puja. The lotus is a sacred flower and plant for Hindus. The 'Tulsi' plant or Indian basil is an important symbol in the Hindu religious tradition.
Kautilya's Arthashastra
69. Kautilya's Arthashastra, an ancient Indian treatise on administration, economic policy, taxation, diplomacy, planning and other 64 dimensions of statecraft, remains very much relevant in today's world as well. The text was influential until the 12th century, when it disappeared. It was rediscovered in 1904 by R. Shamasastry, who published it in 1909. The first English translation was published in 1915.
70. This treatise provides lot of knowledge about environment and its conservation. It describes the maintenance of public sanitation and preservation of environment, forest and wildlife. Even in the affairs of the state, the administration and the ruler were directed to preserve and promote environmental welfare. In Arthasastra, Kautilya suggests the need to develop Abhayaranya or Abhayavana, forest and animal sanctuaries, where trees and animals would both reside free from the fear of slaughter. Kautilya also prescribed the post of a forest superintendent and penalties for poaching and causing damage to forests, especially productive ones.
71. In topic 35, he recommends that the "Superintendent of forest produce" appointed by State for each forest zone be responsible for maintaining the health of the forest, protecting forests to assist wildlife such as elephants (Hastivana), but also producing forest products to satisfy economic needs, products such as Teak, Palmyra, Mimosa, Sissu, Kauki, Sirisha, Catechu, Latifolia, Arjuna, Tilaka, Tinisa, Sal, Robesta, Pinus, Somavalka, Dhava, Birch, Bamboo, Hemp, Balbaja (used for ropes), Munja, Fodder, Firewood, Bulbous roots and fruits for medicine, flowers. Arthashastra also reveals that the Mauryas designated specific forests to protect supplies of timber, as well as lions and tigers, for skins. Kautilya gives the notion that new forests were to be planned, at the time of a new state having been established, on an unoccupied land and the land unsuitable for agriculture.
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72. Arthasastra's directives on water indicate that it was regarded as a "collective, not a private commodity" and was considered extremely precious. Fines were also prescribed for a number of acts that adversely affected water bodies, for obstructing or diverting a water course, for damaging embankments etc.
73. He emphasized on efficient water management and the detailed instructions on how to do it. He recommended practices for the conservation of natural resources, especially living resources. He was aware that the future productivity of natural resources is linked to their appropriate conservation. Also, in line with Hindu traditions, he recommends kindness towards animals.
74. Arthashastra reveals the attention focused on wildlife in the Mauryan period; certain forests were declared protected and called Abhayaranya like the present day 'sanctuary' and heavy penalties, including capital punishment, were prescribed for offenders who entrapped, killed or otherwise molested elephants, deer, bison, birds, or fish, amongst other animals.
75. It is not that awareness of environment was found only in Hinduism, but in other beliefs and religions also, there is huge environmental awareness.
76. Buddhism: Buddhism which came to India after the Vedic period, laid great stress on truth, non-violence and love for all living creatures including trees, plants and flora-fauna. Every follower of Buddhism was supposed to plant a tree every year and nourish it until it became a full- grown tree. Any kind of hunting and killing of animals, birds or living organism was strictly prohibited being against the cherished principle of Ahimsa i.e. non-violence. Compassion for all living creatures formed a part 66 of Buddhism which every Buddhist was expected to follow ardently. The Great King Ashok is known to have relinquished the throne out of compassion for living creatures and preached Ahimsa (non-violence). It was perhaps the first ruler who opened veterinary hospitals for the care and treatment of ailing animals and cattle and started nurseries for the care and protection of plants. He vigorously campaigned for plantation of trees on both side of the roads throughout his kingdom.
77. Jainism: The followers of Jainism also abhored killing of animals and plants as they were the natural resources for supporting the human life. Like Buddhism, the Jainism also laid great emphasis on truth, non- violence and compassion for living creatures including animals, birds, aquatics, worms and insects. They believed that plants and trees also had life and therefore, (destroying them was an act of violence which was against the principle of non-violence. Every follower of Jainism was supposed to take fifteen vows such as Karma, Karmdan, Van Karm, Sphotrik Karm, Nirlanchan Karm, Asotipasan Karm etc. which were exclusively related to protection of environment against any kind of pollution.
78. Sikhism: The religious tenets of Sikhism also accepted that preservation of environment is one of the sacred duties of every follower of this religion. There are references in holy religious discourse in Guru Nanak Bani about Joga and Jagat tracing creation of world from natural resources of water, fire, air, sky and God. It is analogues to the ancient religious belief that human body is composed of Panchatatva and any life without these elements (Tatvas) cannot exist on the earth. Sikhism believes that imminent spirit of God is present in nature. All living creatures and human actions are guided by Almighty's wishes. It is therefore, an ardent duty of every person to protect animals, plants, trees, 67 rivers, mountains which are the natural source for human existence and life on earth.
79. Islam: The followers of Islamic faith also believe in peace with nature based on divine ethical principles of mutual coexistence. It believes that human beings must maintain a balance with nature and natural resources which are valuable gifts of nature which need to be preserved from destruction or spoliation. Protection of environment against any kind of pollution has been a cardinal principle of Islamic religious philosophy. It believes that Allah (God) has created the earth and implanted therein mountains, hills, valleys, rivers, lakes, springs, forests, pastures, plaits etc., wherein live human beings along with animals, birds and thousands of other living creatures serving the mankind. Each of these has a function and role in maintenance of ecological balance. According to Islamic concept of environmental conservation, human beings are mere trustees of natural resources which they are supposed to preserve for the benefit of the society.
80. Christianity: Need for purity of environment has also been advocated by Pope Paul VI of the Vatican City for the overall progress of human society. Christians are baptized in water as a sign of purification; therefore, they strongly believe that purity of water must be maintained at all costs. Bible ordains man not to exhaust natural resources by misuse as they are immensely useful in maintaining ecological equilibrium and clear environment. Natural resources are gift from God given to mankind for its survival and, therefore, they have to be preserved for the survival of life on earth.
81. A perusal of Hindu religious scriptures called the Vedas, Upanishads, Smritis, Puranas, Ramayana, Mahabharata, Gita, 68 mythological literature including stories, social and moral codes, and political rules, reveals that following were the general guiding principles to be observed by all in their daily life:
i. Respect Nature.
ii. Life in living is dependent on various components of nature.
iii. Keep harmony with nature.
iv. Protect natural environment. v. Utilise natural resources only to satisfy the needs of the people. vi. Presence of the divinity of nature in all living and non-living objects. vii. Destruction of nature means destruction of mankind.
viii. All must have compassion for animate objects; for example, trees, animals, birds, aquatic life, etc. ix. Air, water, land, sky, trees, animals are the creation of God and He dwells in all of them. Therefore, to worship them is to worship Him-
the creator of the universe.
x. Man, being one of the creations of God, has no special privilege or authority over other creatures, on the other hand he has more obligations and duties to protect and improve them.
xi. Ahimsa Parmo Dharmah (non-violence) is the dharma of the highest order, one should be non-violent towards animals, tree's, and other microorganisms alike. Hinsa (violence) was considered as a sin.
xii. Drought, fury of floods and storms, heavy rains, cloudbursts, lightning, earthquakes, volcanic eruptions, heavy tides is the violent forms of anger manifested by the Gods and Goddesses.
xiii. Purity of thought and expression, and cleanliness of the environment around us should be observed.69
xiv. All lives, human and non-human including trees, are of equal value and all have the same right to existence. It shows that the principle of sanctity of life is clearly ingrained in the Hindu religion.
82. The oldest and simplest form of nature - worship finds expression in Vedic texts and more particularly, in Rigveda. The origin of environmental science can be seen long back in the Vedic and ancient Sanskrit literature. Vedic view on environment is well-defined in one verse of the Atharvaveda where three coverings of our surroundings are referred as Chandamsi: Wise utilise three elements variously which are varied, visible and full of qualities. These are water, air and plants or herbs. They exist in the world from the very beginning. They are called as Chandamsi meaning coverings available everywhere.
83. It proves the knowledge of Vedic seers about the basic elements of environment. According to one indigenous theory established in the Upanishads, the universe consists of five basic elements, viz. (i) earth or land, (ii) water, (iii) light or luster, (iv) air and (v) ether. Nature has maintained a status of balance between and among these constituents or elements and living creatures. A disturbance in percentage of any constituent of the environment beyond certain limits disturbs the natural balance, and any change in the natural balance causes lots of problems to the living creatures in the universe. The relation of human beings with the environment is very natural as he cannot live without it. Rigvedic hymns are devoted to natural forces and they have been identified with deities. In these hymns, we find prayers for certain natural elements such as air, water, earth, sun, rain, dawn, etc.
84. In other words, it can be said that India has an ancient tradition of protecting the environment. Most ancient texts teach us that it is the 70 Dharma of each individual in any society to protect nature. This is why people have always worshipped the objects of nature. Trees, water, land and animals have an important mention in our ancient texts. In Hinduism, we find that Vedas, Upanishads and other ancient scriptures of the Hindu religion have given great importance to trees, plants and wildlife and also to their value to human beings. In ancient times well developed mechanism regarding the protection of environment was established in our culture. Human conduct was mended according to the protection of environment. Our ancient legal codes such as Vedas, Upnishads, Puranas etc. protected the environment. We are required to adopt our ancient environmental protection system.
85. In Bengaluru Development Authority vs Sudhakar Hegde & Ors. (2020)15SCC63, Supreme Court said in Para 41 of judgment that environment by its very nature, is dynamic. Soil quality, air characteristic and surrounding flora and fauna are among the characteristics of environment which are constantly is a state of flux. A robust framework of environment governance accounts for the dynamic nature of environment. It is for this reason that project proponents are also required to ensure the submission of an environmental management plan and compliance with the monitoring procedure envisaged under EIA 2006.
86. When the term environment has such a vast canvas, law relating to environment has to be interpreted so as to give it the widest possible scope and ambit so long as it does not travel beyond the specific or what comes by necessary implication within the scope/ambit of the concerned Statute relating to environment.
87. The entries in the Schedule of EIA 2006 has to be read in context of the relevant social connectivity. Constitutional mandate and laws of time 71 affecting nature of the subject i.e., environment due to any violation etc., are relevant factors which would have to be taken into consideration when interpretation is given to an entry in a statute which works in the field of environment for its protection, preservation and remediation.
88. EIA 2006 has been issued in exercise of powers under the provisions of EP Act, 1986. From a perusal of Object and Reasons of EP Act, 1986, it is clear that the legislature noticed that some major areas of environmental hazard were not covered, that there existed uncovered gaps in the areas of major environmental hazards and that there were inadequate linkages in handling the matters of industrial and environmental safety by the existing laws dealing directly or indirectly with environmental matters. It was also a matter of concern for the legislature that there was rapid decline in environmental quality. Thus, legislature felt the need for a general legislation which led to the enactment of EP Act, 1986.
89. Section 3 of EP Act, 1986 empowers Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution. These measures could relate to any or all the matters stated under Section 3(2) of EP Act, 1986.
90. Similarly, Section 5 EP Act, 1986 which opens with a non-obstante clause but is subject to the provisions of the Act, empowers Central Government to issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. The directions which could be issued are of very wide magnitude including closure, prohibition or regulation of any industry, operation or process. It has empowered Central Government to issue 72 directions with regard to the stoppage or regulation of supply of electricity or water or any other service to the industry.
91. Under Section 6 of EP Act, 1986, Central Government, by Notification in the Official Gazette can make rules in respect of all or any of the matters referred to in Section 3 of Act. Such rules could provide standards of quality of air, water, soil, maximum allowable limits of concentration of various environmental pollutants including noise and also provide the procedure and safeguards for the handling of hazardous substances etc.
92. Section 25 of EP Act, 1986 vests Central Government with power to make rules to carry out the purpose of this Act. Such rules are to be laid before the Parliament in accordance with the procedure prescribed under Section 26 of EP Act, 1986.
93. In exercise of the powers conferred by Sections 6 and 25 of EP Act, 1986, Central Government framed rules, called Environmental Protection Rules, 1986 (hereinafter referred to as 'EP Rules, 1986'). In terms of Rule 5 thereunder, Central Government has to take into consideration the factors stated in Rule 5 (1), while prohibiting or restricting the locations of industry and carrying on of process and operation in different areas. In terms of Rules 5(2) and 5(3)(a), Central Government is required to follow the procedure prescribed, before it could put prohibition or restriction on the location of the industry and carrying on of processes and operations in an area. It is expected to prepare a draft notice in that regard, invite objections and after considering such objections, Government could issue a final notice, unless following of such procedure is dispensed with by the Central Government in public interest as contemplated under Rule 5(4) of EP Rules, 1986.
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94. Central Government has issued various orders and directions in exercise of powers under Section 3. In M.C. Mehta vs. Union of India, (2002)4SCC356, it has been held that such directions are binding on all persons concerned.
Environmental Impact Assessment 1994:
95. Exercising powers under Section 3(1)(2)(v) of EP Act, 1986, read with Rule 5(3)(d) of EP Rules 1986, MoEF issued notification dated 27.01.1994 on Environmental Impact Assessment of Development Projects (hereinafter referred to as 'EIA 1994'). It provided that expansion and modernization of any activity (if pollution load is to exceed the existing one) or a new project, listed in Schedule I of the said notification, shall not be undertaken in any part of India unless it has been accorded EC by Central Government in accordance with the procedure specified in the said Notification.
96. Process for making provisions, imposing restrictions and prohibition on expansion and modernization of any activity or a new project unless EC has been accorded, was initiated by the Government of India by publishing notification dated 28.01.1993 under Section 5(3)(a) of EP Rules, 1986, inviting objections from the public within 60 days from the date of publication of the said notification in respect to the matters detailed therein. After considering objections received, final notification was issued on 27.01.1994.
97. Initially, in the Schedule I to EIA 1994, there were 30 projects/activities, which were required to obtain EC under EIA 1994. Later two more were added.
98. In order to complete the evolution of EIA 1994, we may mention here that it was amended by several notifications i.e., dated 04.05.1994, 74 10.04.1997, 27.01.2000, 13.12.2000, 01.08.2001, 21.11.2001, 13.06.2002, 28.02.2003, 07.05.2003, 04.08.2003, 22.09.2003 and 07.07.2004.
99. Para 2 of EIA 1994 talks of requirements and procedure for seeking EC of projects and reads as under:
"2) Requirements and procedure for seeking environmental clearance of projects:
I.(a) Any person who desires to undertake any new project in any part of India or the expansion or modernization of any existing industry or project listed in the Schedule-I shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi.
The application shall be made in the proforma specified in Schedule- II of this notification and shall be accompanied by a project report which shall, inter alia, include an Environmental Impact Assessment Report, Environment Management Plan and details of public hearing as specified in Schedule-IV prepared in accordance with the guidelines issued by the Central Government in the Ministry of Environment and Forests from time to time. However, Public Hearing is not required in respect of
(i) small scale industrial undertakings located in (a) notified/designated industrial areas/industrial estates or (b) areas earmarked for industries under the jurisdiction of industrial development authorities;
(ii) widening and strengthening of highways;
(iii) mining projects (major minerals) with lease area up to 25
hectares,
(iv) units located in Export Processing Zones, Special Economic Zones
(v) modernisation of existing irrigation projects.
(vi) offshore exploration activities, beyond 10 kilometres from the
nearest habituated village boundary, gaothans and ecologically sensitive areas such as, mangroves (with a minimum area of 1000 sq.m), corals, coral reefs, national parks, sanctuaries, reserve forests and breeding and spawning grounds of fish and other marine life;
Provided further, that for pipeline projects, Environmental Impact Assessment report will not be required:
Provided further, that for pipeline and highway projects, public hearing shall be conducted in each district through which the pipeline or highway passes through:
(b) Cases rejected due to submission of insufficient or inadequate data and Plans may be reviewed as and when submitted with complete data and Plans. Submission of incomplete data or plans for the second time would itself be a sufficient reason for the Impact assessment Agency to reject the case summarily.75
II. In case of the following site specific projects:
(a) mining;
(b) pit-head thermal power stations;
(c) hydro-power, major irrigation projects and/or their combination
including flood control;
(d) ports and harbours (excluding minor ports);
(e) prospecting and exploration of major minerals in areas above
500 hectares;
(f) greenfield airports, petrochemical complexes and refineries.
The project authorities will intimate the location of the project site to the Central Government in the Ministry of Environment and Forests while initiating any investigation and surveys. The Central Government in the Ministry of Environment and Forests will convey a decision regarding suitability or otherwise of the proposed site within a maximum period of thirty days. The said site clearance shall be granted for a sanctioned capacity and shall be valid for a period of five years for commencing the construction, operation or mining III. (a) The reports submitted with the application shall be evaluated and assessed by the Impact Assessment Agency, and if deemed necessary it may consult a committee of Experts, having a composition as specified in Schedule-III of this Notification. The Impact Assessment Agency (IAA) would be the Union Ministry of Environment and Forests. The Committee of Experts mentioned above shall be constituted by the Impact Assessment Agency or such other body under the Central Government authorized by the Impact Assessment Agency in this regard.
(b) The said Committee of Experts shall have full right of entry and inspection of the site or, as the case may be, factory premises at any time prior to, during or after the commencement of the operations relating to the project.
(c) The Impact Assessment Agency shall prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities supplemented by data collected during visits to sites or factories, if undertaken and details of the public hearing.
The assessment shall be completed within a period of ninety days from receipt of the requisite documents and data from the project authorities and completion of public hearing and decision conveyed within thirty days thereafter.
The clearance granted shall be valid for a period of five years for commencement of the construction or operation of the project.
No construction work, preliminary or otherwise, relating to the setting up of the project may be undertaken till the environmental and site clearance is obtained.
IV. In order to enable the Impact Assessment Agency to monitor effectively the implementation of the recommendations and conditions subject to which the environmental clearance has been given, the project authorities concerned shall submit a half yearly report to the 76 Impact Assessment Agency. Subject to the public interest, the Impact Assessment Agency shall make compliance reports publicly available. V. If no comments from the Impact Assessment Agency are received within the time limit, the project would be deemed to have been approved as proposed by project authorities."
100. Schedule I of EIA 1994 contained a list of projects requiring EC from Central Government. Item 13 thereof covers 'primary metallurgical industries' as also 'Electric arc furnaces' (Mini Steel Plants) and item 28 covers 'Foundries (individual)'. We may reproduce the said entries as under:
"13 (a) Primary metallurgical industries (such as production of Iron and Steel, Aluminium, Copper, Zinc, Lead and Ferro Alloys).
(b) Electric arc furnaces (Mini Steel Plants).
28. Foundries (individual)"
101. Above entries show that all metallurgical industries were covered by item 13 but only to the extent of primary process. In common parlance, metallurgical processes are of two types i.e., primary, and secondary. Item 13 covered all primary metallurgical industries whether producing iron, steel or other metals. Some are mentioned in item 13 illustratively.
However, in mini steel plants, where electric arc furnaces were used, they were all covered by item 13(b). Besides, item 28 covered all Foundries.
102. A foundry is an establishment where founding is carried on i.e., act/process/art of casting metals. The founding processes can be divided into two types-ferrous and non-ferrous industries. Founded processes involve making the mould and the core, melting and pouring the metal into the mould, and finally removing the mould and core and finishing the product. In simplified terms, foundry can be defined as a factory where castings are produced by melting metal, pouring liquid metal into a mold, then allowing it to solidify. The general steps involve in casting are patternmaking, molding, melting, pouring, ejection, cleaning, fettling, and inspection. In the operation of foundry, charging is one of the important 77 but risky operation which needs to be handed very carefully. The melting furnace is charged with metal and heated above metal's melting point.
Once the molten metal has reached a specific pouring temperature it is tapped from the furnace through a spout into a refractory lined steel pouring ladle. Any slag or impurities are skimmed from the top of the molten metal surface. The ladle is then tipped to pour molten metal into a mold cavity. The mold cools and the metal solidify, then the casting is ejected from the mold and cleaned. The cleaned casting is finished with fettling, a process which removes excess material from the casting to meet specified dimensions for the finished product.
103. The above discussion shows that the substantial processes of metallurgical industries/metal industries were covered by item 13 and 28 of Schedule I. In fact, irrespective of the process, wherever electric arc furnaces were used, all such mini steel plants were included in item 13 of Schedule I of EIA 1994.
EIA 2006 Notification dated 14.09.2006
104. MoEF felt that EIA 1994 needed a complete overhauling.
Consequently, in exercise of powers under Rule 5(3) of EP Rules, 1986, a draft notification was published in the Gazette of India (Extraordinary) dated 15.09.2005, inviting objections and suggestions from all persons likely to be affected thereby, within a period of 60 days from the date on which copies of gazette containing draft notifications were made available to the public. The said draft notification contained provisions for imposing certain restrictions and prohibition on new projects or activities or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the schedule to the draft notification, being undertaken in any part of India, unless prior EC has 78 been accorded. Copies of draft notification were made available to the public on 15.09.2005.
105. When the above process was pending, on 18.05.2006, Union Cabinet approved National Environmental Policy (hereinafter referred to as 'NEP 2006') and the procedure, in accordance with which Environmental Clearances needed to be granted. NEP 2006 is a response to India's national commitment to clean environment mandated vide Articles 48 A and 51 A (g) of the Constitution of India strengthened by judicial interpretation of Article 21 by Apex Court reading Right of Clean Environment as part of Right to Life the Fundamental Right enshrined under Article 21 of the Constitution. NEP 2006 recognized that maintenance of healthy environment is not the responsibility of State alone. It is the responsibility of every citizen and thus, a spirit of partnership is to be realized through Environment Management of the country. Environmental key challenges which this country faced related to nexus of environmental degradation with poverty in its many dimensions and economic growth. Challenges were intrinsically connected with the natural environmental resources like land, water, air, and their flora and fauna. It was recognized that proximate drivers of environmental degradation are population growth, inappropriate technology and consumption of choices, and poverty, leading to changes in relations between people and eco-systems and development activities such as intensive agriculture, polluting industry, and unplanned urbanization.
Secondary drivers of degradation not to be ignored are/were lack of clarity or enforcement of rights of access and use of environmental resources, policies which provide disincentives for environmental conservation, market failures and governance constraints. Poor environmental quality 79 had adversely affected human health. Objectives of NEP 2006, therefore, were:
(a) Conservation of critical environmental resources;
(b) Intra-generational equity: livelihood security for poor;
(c) Inter-generational Equity;
(d) Integration of environmental concerns in economic and social
development;
(e) Efficiency in environmental resource use;
(f) Environmental governance;
(g) Enhancement of resources for environmental conservation.
106. NEP 2006 followed the principles as are:
(a) Human beings are at the center of sustainable development
concerns.
(b) Right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.
(c) In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
(d) Where there are credible threats of serious or irreversible damage to key environmental resources, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
(e) In various public actions for environmental conservation, economic efficiency would be sought to be realized.
107. Besides others, policy also focused on encouraging Regulatory Authorities, Central and State, to institutionalize regional and cumulative 80 environmental impact assessments, to ensure that environmental concerns are identified and addressed at the planning stage itself.
108. NEP 2006 also deal with problem of Living Modified Organisms (hereinafter referred to as 'LMO') and Genetically Modified Organisms (hereinafter referred to as 'GMO'). LMO resulted from modern biotechnology and broadly were equivalent to GMO. LMO could grow and typically referred to agricultural crops. GMOs include both LMOs and organisms which were not capable of growing, i.e. are dead.
109. NEP 2006 said that GMO require evaluation of their potential benefits and risks as part of relevant regulatory processes. The subset of LMOs may however, owing to their potential for replication, involved environmental concerns in addition. LMOs may pose significant risks to ecological resources, and perhaps, human and animal health. In order to ensure that development of biotechnology may not lead to unforeseen adverse impacts, the policy aimed to review the regulatory processes for LMOs so that all relevant scientific knowledge is considered and ecological, health and economic concerns are adequately addressed. NEP 2006 took into account various other aspects like 'Polluters Pay' Principle; legal liabilities in the policy; doctrine of public trust; legislative reforms; environmentally sensitive zones; desert habitats, wild life etc.
110. A large number of suggestions and objections were received pursuant to draft notification of revised EIA Policy made available to public on 15.09.2005. The objections and suggestions received were considered in the light of NEP 2006 and notification dated 14.09.2006 was issued in exercise of powers conferred by Section 3(1) and (2) (v) of EP Act, 1986 read with rule 5(3)(d) of EP Rules, 1986, in supersession of EIA 1994, except in respect of things done or omitted to be done before such supersession. 81
111. Preamble of notification dated 14.09.2006 says that Central Government hereby directs that on and from the date of publication of the notification, the required construction of any projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to the notification dated 14.09.2006 entailing capacity addition with change in process and or technology, shall be undertaken in any part of India only after obtaining prior EC from Central Government or as the case may be, by State Level Environment Impact Assessment Authority, duly constituted by Central Government under section 3(3) of EP Act, 1986, in accordance with the procedure specified in the notification dated 14.09.2006. There were some typing mistakes in EIA 2006, as initially published, hence a corrigendum was issued vide notification dated 13.11.2006 and we have read EIA 2006, here at, as corrected by the said corrigendum.
112. Para 2 of EIA 2006 imposes condition of requirement of prior EC and reads as under:
"2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:
(i) All new projects or activities listed in the Schedule to this notification;
(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;
(iii) Any change in product-mix in an existing manufacturing unit included in Schedule beyond the specified range."82
113. Para 3 talks of constitution of State Level Environment Impact Assessment Authority (SEIAA).
114. Para 4 of EIA 2006 categorizes projects and activities and reads as under:
"4. Categorization of projects and activities:
(i) All projects and activities are broadly categorized in to two categories - Category A and Category B, based on the spatial extent of potential impacts and potential impacts on human health and natural and manmade resources.
(ii) All projects or activities included as Category 'A' in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of this notification;
(iii) All projects or activities included as Category 'B' in the Schedule, including expansion and modernization of existing projects or activities as specified in sub paragraph (ii) of paragraph 2, or change in product mix as specified in sub paragraph (iii) of paragraph 2, but excluding those which fulfill the General Conditions (GC) stipulated in the Schedule, will require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory level Expert Appraisal Committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be treated as a Category 'A' project;"
115. Paras 5, 6 and 7 concerned with the procedure of grant of prior EC and read as under:
"5. Screening, Scoping and Appraisal Committees:
The same Expert Appraisal Committees (EACs) at the Central Government and SEACs (hereinafter referred to as the (EAC) and (SEAC) at the State or the Union territory level shall screen, scope and appraise projects or activities in Category 'A' and Category 'B' respectively. EAC and SEAC's shall meet at least once every month.
(a) The composition of the EAC shall be as given in Appendix VI. The SEAC at the State or the Union territory level shall be constituted by the Central Government in consultation with the concerned State Government or the Union territory Administration with identical composition;83
(b) The Central Government may, with the prior concurrence of the concerned State Governments or the Union territory Administrations, constitutes one SEAC for more than one State or Union territory for reasons of administrative convenience and cost;
(c) The EAC and SEAC shall be reconstituted after every three years;
(d) The authorised members of the EAC and SEAC, concerned, may inspect any site(s) connected with the project or activity in respect of which the prior environmental clearance is sought, for the purposes of screening or scoping or appraisal, with prior notice of at least seven days to the applicant, who shall provide necessary facilities for the inspection;
(e) The EAC and SEACs shall function on the principle of collective responsibility. The Chairperson shall endeavour to reach a consensus in each case, and if consensus cannot be reached, the view of the majority shall prevail.
6. Application for Prior Environmental Clearance (EC):
An application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed herewith and Supplementary Form 1A, if applicable, as given in Appendix II, after the identification of prospective site(s) for the project and/or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. The applicant shall furnish, along with the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1A, a copy of the conceptual plan shall be provided, instead of the pre- feasibility report.
7. Stages in the Prior Environmental Clearance (EC) Process for New Projects:
7(i) The environmental clearance process for new projects will comprise of a maximum of four stages, all of which may not apply to particular cases as set forth below in this notification. These four stages in sequential order are:
Stage (1) Screening (Only for Category 'B' projects and activities) Stage (2) Scoping Stage (3) Public Consultation Stage (4) Appraisal I. Stage (1) - Screening:
In case of Category 'B' projects or activities, this stage will entail the scrutiny of an application seeking prior environmental clearance made in Form 1 by the concerned State level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity requires further environmental studies for preparation of an Environmental Impact Assessment (EIA) for its appraisal prior to the grant of environmental clearance 84 depending up on the nature and location specificity of the project. The projects requiring an Environmental Impact Assessment report shall be termed Category 'B1' and remaining projects shall be termed Category 'B2' and will not require an Environment Impact Assessment report. For categorization of projects into B1 or B2 except item 8 (b), the Ministry of Environment and Forests shall issue appropriate guidelines from time to time.
II. Stage (2) - Scoping:
(i) "Scoping": refers to the process by which the Expert Appraisal Committee in the case of Category 'A' projects or activities, and State level Expert Appraisal Committee in the case of Category 'B1' projects or activities, including applications for expansion and/or modernization and/or change in product mix of existing projects or activities, determine detailed and comprehensive Terms Of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought. The Expert Appraisal Committee or State level Expert Appraisal Committee concerned shall determine the Terms of Reference on the basis of the information furnished in the prescribed application Form1/Form 1A including Terms of Reference proposed by the applicant, a site visit by a sub-group of Expert Appraisal Committee or State level Expert Appraisal Committee concerned only if considered necessary by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, Terms of Reference suggested by the applicant if furnished and other information that may be available with the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. All projects and activities listed as Category 'B' in Item 8 of the Schedule (Construction/Township/ Commercial Complexes/Housing) shall not require Scoping and will be appraised on the basis of Form 1/Form 1A and the conceptual plan.
(ii) The Terms of Reference (TOR) shall be conveyed to the applicant by the Expert Appraisal Committee or State Level Expert Appraisal Committee as concerned within sixty days of the receipt of Form 1. In the case of Category, A Hydroelectric projects Item 1(c)
(i) of the Schedule the Terms of Reference shall be conveyed along with the clearance for preconstruction activities. If the Terms of Reference are not finalized and conveyed to the applicant within sixty days of the receipt of Form 1, the Terms of Reference suggested by the applicant shall be deemed as the final Terms of Reference approved for the EIA studies. The approved Terms of Reference shall be displayed on the website of the Ministry of Environment and Forests and the concerned State Level Environment Impact Assessment Authority.
(iii) Applications for prior environmental clearance may be rejected by the regulatory authority concerned on the recommendation of the EAC or SEAC concerned at this stage itself. In case of such rejection, the decision together with reasons for the same shall be communicated to the applicant in writing within sixty days of the receipt of the application.85
III. Stage (3) - Public Consultation:
(i) "Public Consultation" refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate. All Category 'A' and Category B1 projects or activities shall undertake Public Consultation, except the following:
(a) modernization of irrigation projects (item 1(c) (ii) of the Schedule)
(b) all projects or activities located within industrial estates or parks (item 7(c) of the Schedule) approved by the concerned authorities, and which are not disallowed in such approvals.
(c) expansion of Roads and Highways (item 7 (f) of the Schedule) which do not involve any further acquisition of land.
(d) all Building/Construction projects/Area Development projects and Townships (item 8).
e) all Category 'B2' projects and activities.
f) all projects or activities concerning national defence and security or involving other strategic considerations as determined by the Central Government.
(ii) The Public Consultation shall ordinarily have two components comprising of:
(a) a public hearing at the site or in its close proximity-district wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons;
(b) obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity.
(iii) the public hearing at, or in close proximity to, the site(s) in all cases shall be conducted by the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UTPCC) concerned in the specified manner and forward the proceedings to the regulatory authority concerned within 45 (forty-five) of a request to the effect from the applicant.
(iv) in case the State Pollution Control Board or the Union territory Pollution Control Committee concerned does not undertake and complete the public hearing within the specified period, and/or does not convey the proceedings of the public hearing within the prescribed period directly to the regulatory authority concerned as above, the regulatory authority shall engage another public agency or authority which is not subordinate to the regulatory authority, to complete the process within a further period of forty five days.86
(v) If the public agency or authority nominated under the sub paragraph (iii) above reports to the regulatory authority concerned that owing to the local situation, it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed, it shall report the facts in detail to the concerned regulatory authority, which may, after due consideration of the report and other reliable information that it may have, decide that the public consultation in the case need not include the public hearing.
(vi) For obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity, the concerned regulatory authority and the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UTPCC) shall invite responses from such concerned persons by placing on their website the Summary EIA report prepared in the format given in Appendix IIIA by the applicant along with a copy of the application in the prescribed form, within seven days of the receipt of a written request for arranging the public hearing.
Confidential information including non-disclosable or legally privileged information involving Intellectual Property Right, source specified in the application shall not be placed on the web site. The regulatory authority concerned may also use other appropriate media for ensuring wide publicity about the project or activity. The regulatory authority shall, however, make available on a written request from any concerned person the Draft EIA report for inspection at a notified place during normal office hours till the date of the public hearing. All the responses received as part of this public consultation process shall be forwarded to the applicant through the quickest available means.
(vii) After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal. The applicant may alternatively submit a supplementary report to draft EIA and EMP addressing all the concerns expressed during the public consultation. IV. Stage (4) - Appraisal:
(i) Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority concerned for grant of environmental clearance. This appraisal shall be made by Expert Appraisal Committee or State Level Expert Appraisal Committee concerned in a transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorized representative. On conclusion of this proceeding, the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance on stipulated terms and conditions, or rejection of the application for prior environmental clearance, together with reasons for the same.87
(ii) The appraisal of all projects or activities which are not required to undergo public consultation, or submit an Environment Impact Assessment report, shall be carried out on the basis of the prescribed application Form 1 and Form 1A as applicable, any other relevant validated information available and the site visit wherever the same is considered as necessary by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned.
(iii) The appraisal of an application shall be completed by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned within sixty days of the receipt of the final Environment Impact Assessment report and other documents or the receipt of Form 1 and Form 1 A, where public consultation is not necessary and the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee shall be placed before the competent authority for a final decision within the next fifteen days. The prescribed procedure for appraisal is given in Appendix V;
7(ii). Prior Environmental Clearance (EC) process for Expansion or Modernization or Change of product mix in existing projects:
All applications seeking prior environmental clearance for expansion with increase in the production capacity beyond the capacity for which prior environmental clearance has been granted under this notification or with increase in either lease area or production capacity in the case of mining projects or for the modernization of an existing unit with increase in the total production capacity beyond the threshold limit prescribed in the Schedule to this notification through change in process and or technology or involving a change in the product -mix shall be made in Form I and they shall be considered by the concerned Expert Appraisal Committee or State Level Expert Appraisal Committee within sixty days, who will decide on the due diligence necessary including preparation of EIA and public consultations and the application shall be appraised accordingly for grant of environmental clearance."
116. Para 8 talks of the final stage of grant or rejection of prior EC and reads as under:
"8. Grant or Rejection of Prior Environmental Clearance (EC):
(i) The regulatory authority shall consider the recommendations of the EAC or SEAC concerned and convey its decision to the applicant within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned or in other words within one hundred and five days of the receipt of the final Environment Impact Assessment Report, and where Environment Impact Assessment is not required, within one hundred and five days of the receipt of the complete application with requisite documents, except as provided below.
(ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. In cases where it disagrees 88 with the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, the regulatory authority shall request reconsideration by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned while stating the reasons for the disagreement. An intimation of this decision shall be simultaneously conveyed to the applicant. The Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, in turn, shall consider the observations of the regulatory authority and furnish its views on the same within a further period of sixty days. The decision of the regulatory authority after considering the views of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall be final and conveyed to the applicant by the regulatory authority concerned within the next thirty days.
(iii) In the event that the decision of the regulatory authority is not communicated to the applicant within the period specified in sub-
paragraphs (i) or (ii) above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned.
(iv) On expiry of the period specified for decision by the regulatory authority under paragraph (i) and (ii) above, as applicable, the decision of the regulatory authority, and the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall be public documents.
(v) Clearances from other regulatory bodies or authorities shall not be required prior to receipt of applications for prior environmental clearance of projects or activities, or screening, or scoping, or appraisal, or decision by the regulatory authority concerned, unless any of these is sequentially dependent on such clearance either due to a requirement of law, or for necessary technical reasons.
(vi) Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the applicant, and following the principles of natural justice."
117. Para 9 deals with the validity of EC, i.e., the tenure etc. and reads as under:
"9. Validity of Environmental Clearance (EC):
The "Validity of Environmental Clearance" is meant the period from which a prior environmental clearance is granted by the regulatory authority, or may be presumed by the applicant to have been granted under sub paragraph (iv) of paragraph 7 above, to the start of 89 production operations by the project or activity, or completion of all construction operations in case of construction projects (item 8 of the Schedule), to which the application for prior environmental clearance refers. The prior environmental clearance granted for a project or activity shall be valid for a period of ten years in the case of River Valley projects (item 1(c) of the Schedule), project life as estimated by Expert Appraisal Committee or State Level Expert Appraisal Committee subject to a maximum of thirty years for mining projects and five years in the case of all other projects and activities. However, in the case of Area Development projects and Townships [item 8(b)], the validity period shall be limited only to such activities as may be the responsibility of the applicant as a developer. This period of validity may be extended by the regulatory authority concerned by a maximum period of five years provided an application is made to the regulatory authority by the applicant within the validity period, together with an updated Form 1, and Supplementary Form 1A, for Construction projects or activities (item 8 of the Schedule). In this regard the regulatory authority may also consult the Expert Appraisal Committee or State Level Expert Appraisal Committee as the case may be."
118. Para 10 talks of monitoring of post EC stages and says:
"10. Post Environmental Clearance Monitoring:
(i) It shall be mandatory for the project management to submit half-
yearly compliance reports in respect of the stipulated prior environmental clearance terms and conditions in hard and soft copies to the regulatory authority concerned, on 1st June and 1st December of each calendar year.
(ii) All such compliance reports submitted by the project management shall be public documents. Copies of the same shall be given to any person on application to the concerned regulatory authority. The latest such compliance report shall also be displayed on the web site of the concerned regulatory authority."
119. A prior EC granted to a project or activity is transferable, subject to certain conditions. This aspect is dealt with in para 11 as under:
"11. Transferability of Environmental Clearance (EC):
A prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor, or by the transferee with a written "no objection" by the transferor, to, and by the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period. No reference to the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned is necessary in such cases."90
120. Para 12 is a transitional provision dealing with the pending cases under EIA 1994 and said:
"12. Operation of EIA Notification, 1994, till disposal of pending cases:
From the date of final publication of this notification the Environment Impact Assessment (EIA) notification number S.O.60 (E) dated 27th January, 1994 is hereby superseded, except in supersession of the things done or omitted to be done before such supersession to the extent that in case of all or some types of applications made for prior environmental clearance and pending on the date of final publication of this notification, the Central Government may relax any one or all provisions of this notification except the list of the projects or activities requiring prior environmental clearance in Schedule, or continue operation of some or all provisions of the said notification, for a period not exceeding one year from the date of issue of this notification."
121. EIA 2006 further contains a Schedule and six Appendixes. Appendix I is a format of Form-1 and Appendix II is a format of Form-1A which are referred in para 6 of EIA 2006. These are the formats of application to be submitted by a proponent for grant of prior EC. Appendix III contains a chart giving generic structure of environmental impact assessment document with reference to para 7 and Appendix III A provides contents of summary environmental impact assessment and it is also in reference to para 7 of EIA 2006. Appendix III has 12 items comprising EIA structure and the contents thereof are also separately detailed as under:
"GENERIC STRUCTURE OF ENVIRONMENTAL IMPACT ASSESSMENT DOCUMENT S. EIA STRUCTURE CONTENTS NO.
1 Introduction • Purpose of the report • Identification of project & project proponent • Brief description of nature, size, location of the project and its importance to the country, region • Scope of the study - details of regulatory scoping carried out (As per Terms of Reference) 2 Project Description • Condensed description of those aspects of the project (based on project feasibility study), likely to cause environmental effects. Details should 91 be provided to give clear picture of the following:
• Type of project • Need for the project • Location (maps showing general location, specific location, project boundary & project site layout) • Size or magnitude of operation (incl.
Associated activities required by or for the project • Proposed schedule for approval and implementation • Technology and process description • Project description. Including drawings showing project layout, components of project etc. Schematic representations of the feasibility drawings which give information important for EIA purpose • Description of mitigation measures incorporated into the project to meet environmental standards, environmental operating conditions, or other EIA requirements (as required by the scope) • Assessment of New & untested technology for the risk of technological failure 3 Description of the • Study area, period, components & Environment methodology • Establishment of baseline for valued environmental components, as identified in the scope • Base maps of all environmental components 4 Anticipated • Details of Investigated Environmental Environmental Impacts impacts due to project location, possible & Mitigation Measures accidents, project design, project construction, regular operations, final decommissioning or rehabilitation of a completed project • Measures for minimizing and/or offsetting adverse impacts identified • Irreversible and Irretrievable commitments of environmental components • Assessment of significance of impacts (Criteria for determining significance, Assigning significance) 92 • Mitigation measures 5 Analysis of Alternatives • In case, the scoping exercise results in (Technology & Site) need for alternatives:
• Description of each alternative • Summary of adverse impacts of each alternative • Mitigation measures proposed for each alternative and • Selection of alternative 6 Environmental • Technical aspects of monitoring the Monitoring Program effectiveness of mitigation measures (incl. Measurement methodologies, frequency, location, data analysis, reporting schedules, emergency procedures, detailed budget & procurement schedules) 7 Additional Studies • Public Consultation • Risk assessment • Social Impact Assessment. R&R Action Plans 8 Project Benefits • Improvements in the physical infrastructure • Improvements in the social infrastructure • Employment potential -skilled; semi-
skilled and unskilled • Other tangible benefits 9 Environmental Cost • If recommended at the Scoping stage Benefit Analysis 10 EMP • Description of the administrative aspects of ensuring that mitigative measures are implemented and their effectiveness monitored, after approval of the EIA 11 Summary & Conclusion • Overall justification for implementation (This will constitute the of the project summary of the EIA Report) • Explanation of how, adverse effects have been mitigated 12 Disclosure of • The names of the Consultants engaged Consultants engaged with their brief resume and nature of Consultancy rendered
122. Summary of environmental impact assessment should contain details given in Appendix III A of EIA report, on seven aspects, as under:
"1. Project Description
2. Description of the Environment
3. Anticipated Environmental impacts and mitigation measures 93
4. Environmental Monitoring Programme
5. Additional Studies
6. Project Benefits
7. Environment Management Plan"
123. Appendix IV, also with reference of para 7, provides procedure for conduct of public hearing.
124. Appendix V, again with reference to para 7, provides procedure for appraisal of Environment Impact Assessment Report and other documents and talks of following steps:
"PROCEDURE PRESCRIBED FOR APPRAISAL
1. The applicant shall apply to the concerned regulatory authority through a simple communication enclosing the following documents where public consultations are mandatory:
• Final Environment Impact Assessment Report [20(twenty) hard copies and 1 (one) soft copy)] • A copy of the video tape or CD of the public hearing proceedings • A copy of final layout plan (20 copies) • A copy of the project feasibility report (1 copy)
2. The Final EIA Report and the other relevant documents submitted by the applicant shall be scrutinized in office within 30 days from the date of its receipt by the concerned Regulatory Authority strictly with reference to the TOR and the inadequacies noted shall be communicated electronically or otherwise in a single set to the Members of the EAC/SEAC enclosing a copy each of the Final EIA Report including the public hearing proceedings and other public responses received along with a copy of Form -1 or Form 1A and scheduled date of the EAC/SEAC meeting for considering the proposal.
3. Where a public consultation is not mandatory, and therefore a formal EIA study is not required, the appraisal shall be made on the basis of the prescribed application Form 1 and a pre-feasibility report in the case of all projects and activities other than Item 8 of the Schedule. In the case of Item 8 of the Schedule, considering its unique project cycle, the EAC or SEAC concerned shall appraise all Category B projects or activities on the basis of Form 1, Form 1A and the conceptual plan and stipulate the conditions for environmental clearance. As and when the applicant submits the approved scheme/building plans complying with the stipulated environmental clearance conditions with all other necessary statutory approvals, the EAC/SEAC shall recommend the grant of environmental clearance to the competent authority."94
4. Every application shall be placed before the EAC/SEAC and its appraisal completed within 60 days of its receipt with requisite documents/details in the prescribed manner.
5. The applicant shall be informed at least 15 (fifteen) days prior to the scheduled date of the EAC/SEAC meeting for considering the project proposal.
6. The minutes of the EAC/SEAC meeting shall be finalised within 5 working days of the meeting and displayed on the website of the concerned regulatory authority. In case the project or activity is recommended for grant of EC, then the minutes shall clearly list out the specific environmental safeguards and conditions. In case the recommendations are for rejection, the reasons for the same shall also be explicitly stated."
125. Appendix VI with reference to paragraph 5 of EIA 2006 gives composition of sector/project specific Expert Appraisal Committee for category A projects and the State/UT Level Expert Appraisal Committees for category B projects to be constituted by Central Government. Schedule gives the list of projects or activities which would require prior EC and covers the following projects/activities:
"1. Mining, extraction of natural resources and power generation (for a specified production capacity) 1(a) Mining of minerals 1(b) Offshore and onshore oil and gas exploration, development & production 1(c) River Valley projects 1(d) Thermal Power Plants 1(e) Nuclear power projects and processing of nuclear fuel
2. Primary processing 2(a) Coal washeries 2(b) Mineral benefication
3. Materials Production 3(a) Metallurgical industries (ferrous & non-ferrous) 3(b) Cement plants
4. Materials Processing 4(a) Petroleum refining industry 4(b) Coke oven plants 4(c) Asbestos milling and asbestos based products 4(d) Chlor-alkali industry 4(e) Soda ash industry 4(f) Leather/skin/hide processing industry 95
5. Manufacturing/Fabrication 5(a) Chemical fertilizers 5(b) Pesticides industry and pesticide specific intermediates (excluding formulations) 5(c) Petro-chemical complexes (industries based on processing of petroleum fractions & natural gas and/or reforming to aromatics) 5(d) Manmade fibres manufacturing 5(e) Petrochemical based processing (processes other than cracking & reformation and not covered under the complexes) 5(f) Synthetic organic chemicals industry (dyes & dye intermediates; bulk drugs and intermediates excluding drug formulations; synthetic rubbers; basic organic chemicals, other synthetic organic chemicals and chemical intermediates) 5(g) Distilleries 5(h) Integrated paint industry 5(i) Pulp & paper industry excluding manufacturing of paper from waste paper and manufacture of paper from ready pulp without bleaching 5(j) Sugar industry 5(k) Induction/arc furnaces/cupola furnaces 5TPH or more
6. Service Sectors 6(a) Oil & gas transportation pipeline (crude and refinery/petrochemical products), passing through national parks/sanctuaries/coral reefs/ecologically sensitive areas including LNG Terminal.
6(b) Isolated storage & handling of hazardous chemicals (As per threshold planning quantity indicated in column 3 of schedule 2 & 3 of MSIHC Rules 1989 amended 2000)
7. Physical Infrastructure including Environmental Services 7(a) Air ports 7(b) All ship breaking yards including ship breaking units 7(c) Industrial estate/parks/complexes/areas, export processing Zones (EPZs), Special Economic Zones (SEZs), Biotech Parks, Leather Complexes.
7(d) Common hazardous waste treatment, storage and disposal facilities (TSDFs) 7(e) Forts, Harbours 7(f) Highways 7(g) Aerial ropeways 7(h) Common Effluent Treatment Plants (CETPs) 7(i) Common Municipal Solid Waste Management Facility (CMSWMF)"
126. In the present case, we are concerned with item/entry 3(a) of Schedule of EIA 2006 which deals with metallurgical industries (ferrous 96 and non-ferrous). The entry as it was initially introduced/notified in EIA 2006, published on 14.09.2006, read as under:
3 Materials Production (1) (2) (3) (4) (5) 3(a) Metallurgical a) Primary industries metallurgical (ferrous & industry non-ferrous) All projects
b) Sponge iron Sponge iron General Condition shall manufacturing manufacturing apply for Sponge iron >200TPD <200TPD manufacturing
c) Secondary Secondary metallurgical metallurgical processing processing industry industry All toxic and i) All toxic and heavy metal heavy metal producing producing units units > 20,000 <20,000 tonnes/annum tonnes/annum
ii) All other non-
toxic secondary metallurgical processing industries >5000 tonnes/annum
127. Amendment was brought in item 3 of Schedule of EIA 2006 vide amendment notification dated 01.12.2009 published in Gazette of India (Extraordinary) of the same date. The said notification brought amendment in item 3 column (5) as under:
"(iv) against item 3(a), in column (5), for the entries, the following entries shall be substituted, namely:
"General Condition shall apply.
Note:
(i) The recycling industrial units registered under the HSM Rules, are exempted.
(ii) In case of secondary metallurgical processing industrial units, those projects involving operation of furnaces only such as induction and electric arc furnace, submerged arc furnace, and cupola with capacity more than 30,000 tonnes per annum (TPA) would require environmental clearance.
(iii) Plant/units other than power plants (given against entry no. 1(d) of the schedule), based on municipal solid waste (non-hazardous) are exempted."."97
128. It is thus evident from the very opening paras of EIA 2006, they were framed primarily with the intention of preventing and controlling pollution, resulting from industrial activity of the scheduled industries and projects. Potential environmental impacts from such projects and industries were of prime consideration while dealing with the applications filed for seeking Environmental Clearance. Tribunal would have to examine cumulative impact of the object of EP Act, 1986, EP Rules, 1986 and EIA 2006 while considering ambit, scope and meaning of an Entry existing in the Schedule to EIA 2006.
129. First and foremost, we must examine as to how an Entry in a social welfare legislation like EP Act, 1986 should be interpreted and what principles of interpretation are to be applied while dealing with such an Entry.
130. We may, at this stage, refer to a judgment of Tribunal i.e., Haat Supreme Wastech Pvt. Ltd. v State of Haryana, 2013 All (I) NGT Reporter (2) (DELHI) 140, where the Bench of Tribunal was concerned with interpretation of another Entry of the same Schedule i.e., Entry 7(d) of the Schedule to EIA 2006 - "Common hazardous waste treatment, storage and disposal facility". It will be useful to notice the following discussion from the said judgment:
"The Act of 1986 and the rules afore-referred, in particular Rules of 1998, are socio-welfare legislations as they have triple objects:
firstly, they are welfare legislations in as much as they mandate the State to provide clean and decent environment. Secondly, they provide for remedies which could be invoked by different stakeholders and even by any aggrieved person and thirdly, the consequences of violating the environmental provisions including punitive actions. Thus, while interpreting the relevant provisions, these concepts have to be appropriately considered by the Tribunal. The object of these provisions being wholesome environment, the rule of reasonable constructions in conjunction with the liberal construction would have to be applied. While dealing with a social welfare legislation, the provisions and the words therein are to be given a liberal and expanded meaning. Of course, liberal construction does not mean that the words shall be 98 forced out of their natural meaning but they should receive a fair and reasonable interpretation so as to attain the object for which the instrument is designed and the purpose for which it is applied. Both the object and purpose of an Act in relation to its application are thus, relevant considerations for interpretation. The Courts have also permitted departure from the rule of literal construction so as to avoid the statute becoming meaningless or futile. In the case of Surjit Singh v. Union of India (1991) 2 SCC 87 and Sarajul Sunni Board v. Union of India AIR 1959 SC 198, the Supreme Court has also held that it is not allowable to read words in a statute which are not there, but where the alternative allows, either by supplying words which appear to have been accidentally omitted or by adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words. It is also a settled cannon that in case of a social or beneficial legislation, the Courts or Tribunals are to adopt a liberal or purposive construction as opposed to the rule of literal construction.
These well-known principles of interpretation have to be applied, but with caution. Construction favorable to achieve the purpose of enactment but without doing violence to the language is of paramount consideration. In the case of Shivaji Dayanu Patil & Anr. v. Vatschala Uttam More (1991) 3 SCR 26a, the Supreme Court while dealing with a beneficial provision of the Motor Vehicles Act, 1939 held as under:
"It is thus evident that Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose."
The doctrine of reasonable construction implies that the correct interpretation is the one that best harmonizes the words with the object of the statute. Lord Porter in Bhagwan Baksh Singh (Raja) v Secretary of State, AIR 1940 Privy Council 82, stated: "right construction of the Act can only be attained if its whole scope and object together with an analysis of its wording and the circumstances in which it is enacted are taken into consideration." The Tribunals will also keep in mind that the application of a given legislation to new and unforeseen things and situations broadly falling within the statutory provisions is within the interpretative jurisdiction of the courts. In the case of Charan Lal Sahu v Union of India, AIR 1990 SC 1480, the Hon'ble Supreme Court while dealing with the provisions of the Bhopal Gas leak disaster and directing the government to give interim relief to the victims as a measure in articulate premise from the spirit of the Act, declared this approach to the interpretation of the Act as constructive intuition which in the opinion of the court was a permissible mode of viewing the acts of the Parliament."
131. In Keystone Realtors Pvt. Ltd vs. Anil V. Tharthare & Others (2020)2SCC66, Supreme Court had on occasion to consider as to how 99 para 2 and 7 of EIA 2006 should be interpreted. Court said that an interpretation which is in consonance with the object and purpose of the legislation or delegated legislation as a whole, must be adopted. It further said that "EIA Notification was adopted with the intention of restricting new projects and the expansion of new projects until their environmental impact could be evaluated and understood. ..... This Court cannot adopt an interpretation of the EIA Notification which would permit, incrementally or otherwise, project proponents to increase the construction area of a project without any oversight from the Expert Appraisal Committee or the SEAC, as applicable".
132. Keeping in view the legislative intent, object of the Act and the Rules framed thereunder and the purpose sought to be achieved, recourse to any of the above doctrine would be appropriate. Certainly, it is the obligation of the respective governments to prevent and control pollution on one hand and provide clean environment to the public at large on the other. The industrial development cannot be permitted to ignore environmental interests and damage the ecology or ambient environmental quality irretrievably. The units of plants which violate the prescribed standards and cause serious pollution, are to be dealt with strictly in accordance with the prescribed penal or other consequences which may even include the closure of a unit. The rules primarily provide a regulatory regime that is required to be adhered to for the purposes of permissive industrial activity. All these regulatory regimes whether relating to municipal waste, hazardous waste or biomedical waste, owe their allegiance to the substantive provisions and object of the Act of 1986. Reasonable construction is intended to provide a balance between the industrial development and the environment. Principle of 'constructive intuition' would also have its application to the provisions of the Act, the Rules and 100 particularly the Notification of 2006 in relation to dealing with the entries provided in the Schedule. The liberal construction rule would help in giving a purposeful meaning and interpretation to the provisions of the Act and the Rules for attainment of the basic object, i.e., cleaner environment.
133. From the above discussion, it is clear that an Entry of the Schedule of a social welfare legislation, shall be read applying the principle of reasonable and/or liberal construction to ensure that the object and purpose of the Act is undefeated by such interpretation. Most suitable interpretation would be one which would further the cause of the Act and ensure prevention and control of pollution rather than provide escape route to the industry from taking anti-pollution measures and complying with the provisions of the Act.
134. As far as Entry 3(a) of the Schedule to EIA 2006 is concerned, another reason for Tribunal to adopt a liberal or wider interpretation of it is that the process of manufacturing of billets/pellets and processing the same as steel bars by re-rolling method is that of a low-grade iron in our country, that is not set for great use. Large capacity for manufacturing of billets/pellets and processing the same as steel bars by re-rolling method and beneficiation is aimed at utilizing the lower grade iron ore and are presently under way. Standing Committee on Coal and Steel of the Lok Sabha, vide its 38th Report, primarily examined the review of export of iron ore policy and observed: "we seek pelletization as a necessary form of upgrading the existing low-quality ore". This shows that manufacturing of pellets/billets and processing the same as steel bars by re-rolling method is a process adopted for upgradation of low-quality iron ore to make it fit for use in the process of making steel finished products. It is thus only a stage of the composite and complete process of making final steel products from the iron extracted from the mines.
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135. As noticed above, manufacturing of billets and processing the same as steel bars by re-rolling method is a part of a larger process of manufacturing or making steel items for human consumption or otherwise and is a process which acts as the feeder to the further process for extraction of iron and steel from iron ore and no other purpose. It certainly causes serious pollution and thus requires to be checked and controlled at the very threshold. There is nexus between carrying on the process of manufacturing of billets and processing the same as steel bars by re- rolling method and causing pollution. Thus, it gives rise to environmental issues which must be dealt with in accordance with law. The vision of EP Act 1986 would come into place once such nexus is established and substantial questions in relation to environment arise.
136. In Kehar Singh v State of Haryana, 2013(1) - All India (NGT) Reporter 556, Tribunal took a view that the cause of action must have nexus to such disputes which relates to the issue of environment/substantial question relating to environment or any such proceeding to trigger the prescribed period of limitation and held that cause of action must be read in conjunction with and should take colour from the expression 'such dispute'. 'Such dispute' must be one which is relatable to environment. In that case, Tribunal concluded that publication of Section 4 Notification under the Land Acquisition Act would not trigger the limitations in terms of Section 14 of NGT Act, 2010. Similarly, in the present case, when direct nexus between the carrying on of the business and resultant pollution is established and the process in its entirety is covered under the Entry, then such Entry, i.e., Entry 3(a) of the Schedule to EIA 2006 would receive a wider connotation and would take within it the process of manufacturing of billets/pellets and processing the same as steel bars by re-rolling method as part of secondary metallurgical activity. 102 Of course, the matter would be different and the Entry may not receive such interpretation if manufacturing of billets/pellets and processing the same as steel bars by re-rolling method was not an integral part or was in no way relatable to the entire process of making steel. Further, the process of manufacturing of billets/pellets and processing the same as steel bars by re-rolling method results in consequential environmental impact as far as pollution is concerned but both these factors are conspicuous by their very absence in the technical and scientific material placed before us.
137. Process of manufacturing of billets/pellets and processing the same as steel bars by re-rolling method is gaining momentum in the steel industry as it helps in refining the ore for removal of impurities. But it is a direct source of environmental pollution. The billets/pellets are used only for extraction of metal either through blast furnace or reduction process. The process of manufacturing of billets/pellets and processing the same as steel bars by re-rolling method enables iron ore fines into "Uniformed Sized Iron Ore billets/Pellets" that are convenient to be charged. These billets/pellets with their high uniform mechanical strength and high abrasive strength increase production of iron by 25% to 30% with same amount of fuel. Tribunal is expected to examine the cumulative environmental impact of this activity on the environment which has to be environment-centric, being part of the entire metallurgical process than a mere stand-alone activity. The purpose of subjecting such an industry to obtain Environmental Clearance is to ensure prevention of pollution and that higher and prescribed standards of antipollution measures are maintained in the interest of the environment in general rather than being case specific.
138. The problem of environmental pollution in our country has attained serious dimensions and the Courts and Tribunals need to adopt an 103 approach which does not encourage industrial or other polluting units to avoid legal framework within which they ought to operate on the strength of mere technicalities. If on true and reasonable construction of an Entry, the industry or unit is covered under the Schedule then it is obligated to comply with the prescribed law.
139. Moreover, in our view while interpretating entries in Schedule of EIA 2006, provisions in a statute relating to protection of environment, being social welfare legislation, doctrine of common parlance can also be applied for the reason that activities/process/projects mentioned in the Schedule have specific connotation well understood among persons dealing in the said projects/activities. Normally, the doctrine of common parlance earlier was applied in the context of fiscal statutes for interpretating the goods classified in such statutes providing rate of tax. Theory is formulated on the basic principle that classification of goods for the purpose of levy of tax has to be paid by a common man who knows the goods according to the meaning given to them as per normal usage and further it might not be aware of the scientific or technical definitions.
140. In respect to the entries in Schedule of EIA 2006, we find that the projects/activities have a definite identity and recognition amongst the class of persons dealing in such projects/activities and everyone who has even a bare minimum idea for immediately understand the concept of projects/activities as to the nature scope and meaning thereof. Thus, the doctrine of common parlance, in our view, can also be applied for interpretating entries in the schedule to EIA 2006. Here when we talk of common parlance, it means the understanding of a common man who has a common perception with the concerned project/activity whether functional, technical, scientific or otherwise. 104
141. In Porritts and Spencer (Asia) Limited vs. Union of India, AIR 1979 SC 300, Supreme Court held, "where a word has a scientific and old technical meaning and also an ordinary meaning according to common parlance, it is in the letter size that in a taxing statute, the word must be held to have been used, unless contrary intention is clearly expressed by the legislature."
142. In the context of statute relating to custom duties, Supreme Court in United Offset Process Pvt. Ltd vs Asstt. Collector of Customs, 1989 Supplement) 1 SCC 131 said, "If there is no meaning attributed to the expressions used in the particular enacted statute then the items in the customs entries should be judged and analysed on the basis of how these expressions are used in the trade or industry or in the market or, in other words, how these are dealt with by the people who deal in them, provided that there is a market for these types of goods. This principle is well-known as classification on the basis of trade parlance. It is a well-known principle that if the definition of a particular expression is not given, it must be understood in its popular or common sense, viz., in the sense how that expression is used everyday by those who use or deal with those goods."
143. Karnataka High Court in Diebold Systems Pvt. Ltd. vs The Commissioner of Commercial Tax, 2006 (144) STC 59 (KN), recorded its conclusion for application of the doctrine of common parlance or trade parlance by observing that;
a) If goods are not technical in nature, then the meaning associated to the goods in common parlance would be applied.
b) If goods are technical in nature and do not have a market parlance, then only technical meaning would be associated to them.
c) If goods are technical in nature and they have a market parlance, then in such case also, theory of common parlance would be applied.
144. The principle of common parlance/trade parlance/popular sense has been explained and interpreted obviously in the context of taxing 105 statutes and it has been said that words of everyday use must be construed not in the scientific or technical sense but as understood in the common parlance. The statute contains a language which is capable of being construed in a popular sense, such a statue should not be construed according to the strict or technical meaning of the language contained in it but it should be construed in its popular sense, meaning thereby the sense which people conversant with the subject matter with which statute dealing would attribute to it.
145. In Delhi Cloth And General Mills Company ltd. vs State of Rajasthan 1980 AIR 1552, Supreme Court said, if there is one principle fairly well-settled it is that the words or expressions must be construed in the sense in which they are understood in the trade, by the dealer and the consumer. It is they who are concerned with it, and it is the sense in which they understand it that constitutes the definitive index of the Legislative intention when the statute was enacted.
146. In the statute of commercial activities, we can say that the doctrine of common parlance would be applied by reading it as commercial parlance tax. Common parlance attributes the meaning as understood by common man and for a commercial parlance tax statute, it attributes the meaning as understood in the trade and the industry.
147. The entries in Schedule I of EIA 2006 relate to commercial projects and activities, ambit scope with nature and the concept is well-known to the persons involved in the concerned type of projects/activities. Hence unless there is something expressly otherwise shown, the understanding of such commercial people must be the relevant test for interpretating such entries and that can be applied, in our view, while interpretating items/entries in Schedule of EIA 2006.
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148. We answer Issue I accordingly.
149. Issue II: To answer Issue II, first we have to understand the concept of "metallurgical industries".
150. This is the term used under column 2 i.e.," project or activity"
meaning thereby projects or activities which are covered by the term "metallurgical industries" would stand included in the Schedule of EIA 2006 provided other requirements of columns 3,4 and 5 are also satisfied.
151. The expression 'metallurgical industries' connotes two different concepts; one is 'metallurgical' and another is 'industries'. It is not disputed before us that whatever would come within the realm of 'metallurgical industries,' whether ferrous or non-ferrous would be covered by item 3(a), under column 2 i.e., projects or activities. Column (3) and (4) are relevant from the point of view of threshold limit in the particular category of the project/activity covered by item 3(a) mentioned in column (2). Column (3) categorically talks of 'primary metallurgical industry' as well as 'secondary metallurgical processing industry'.
152. Before going into further details of the production, quantity etc., we find it necessary to understand the meaning and ambit of the term 'metallurgical industry' (ferrous & non-ferrous).'
153. Dictionary meaning of 'metallurgy' is "branch of science and technology concerned with the properties of metals and their production and purification." Metallurgy also means art and science of extracting metals from their ores and modifying the metals for use. Metallurgy customarily refers to commercial as opposed to laboratory methods. This is how the definition is given in Encyclopedia Britannica. 107
154. In the Cambridge Dictionary, metallurgy is defined as "the scientific study of the structures and uses of metals," 'A metallurgical process'; 'a metallurgical industry'. Same is the definition given in Collins English Dictionary.
155. In Merriam-Webster dictionary, the definition of metallurgy is "the science and technology of metals."
156. In the Random House Dictionary, the word 'metallurgy' is defined as "the technique or science of separating metals from their ores ; the technique or science of making and compounding alloy ; the technique or science of working or retreading metals so as to give them certain desired shape or properties."
157. According to Shorter Oxford Dictionary, it is "the art of working metals comprising the separation of them from other metals in the ore smelting and refining often in a narrower sense, the process of extracting metals from their ores."
158. In General Multilingual Environmental Thesaurus (hereinafter referred to as 'GEMET'), metallurgical industry is defined as "industry concerned with the extraction, refining, alloying and fabrication of metals."
159. According to Mc Graw-Hill Encyclopedia of Science and Technology 10th Edition, metallurgy is a technology and science of metallic and materials.
160. In Reverso Dictionary, Metallurgy is defined as scientific study of extraction, refining, alloying and fabrication of metals and of their structures and properties.
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161. In the context of Water (Prevention and Control of Pollution) Cess Act, 1977 (hereinafter referred to as 'Water Cess Act, 1977'), the question as to what is the meaning of metallurgical industry came up before a division bench of Patna High Court in Tata Engineering and Locomotive vs. State of Bihar, 1988 (36) BLJR 707, Hon'ble B.P. Sinha, J. (as His Lordship then was) delivering judgment on behalf of Division Bench, referred to the specified industry mentioned in schedule I of Water Cess Act, 1977, referred to the entries (i) Ferrous metallurgical industry (ii) non- ferrous metallurgical industry. Considered the question, as to what is the meaning of metallurgical industry, Court concluded while explaining metallurgical process as follows:
"From all these definitions from the authoritative texts, referred to above, one thing appears to be clear that the scope and ambit of a metallurgical industry starts from extracting mineral ores, refining them by mechanical and chemical processes and finally producing steel in various forms. With this the function of the metallurgical industry ends."
162. Interpretation of item 3(a), "metallurgical industries" in the Schedule of EIA 2006 was also considered by a 5 Members bench of this Tribunal in Appeal No. 05/2014, M/s. Ardent Steel Limited vs. MoEF & Anr. decided vide the judgment dated 27.05.2014 and in para 18 and 19, Tribunal said as under:
"18. According to McGraw-Hill Encyclopedia of Science & Technology, 10th Edition - (Malestrom), "metallurgy" is a technology and science of metallic materials. Metallurgy as a branch of engineering is concerned with the production of metals and alloys, their adaptation to use, and their performance in service. As a science, metallurgy is concerned with the chemical reactions involved in the processes by which metals are produced. This is primary metallurgical process. The winning of metals would have been of little value without the ability to work them for different uses. Thus, the wined metal has to be converted into different forms of metal for different uses. The process involved in converting raw metal into usable metallic form through changing its physical and chemical properties is called secondary metallurgical process.
Oxford Dictionary of English, Third Edition provides meaning of metallurgy as follows:109
"The branch of science and technology concerned with the properties of metals and their production and purification"
19. In the Encyclopedia of Metallurgical Terms by Tootleman, published by Longmans, London, the term 'metallurgy' is defined to embrace "the practice and science of extracting metals from their ores, the refining of crude metal, the production of alloys and the study of their constitution, structure and properties and relationship and physical and mechanical properties to thermal and mechanical treatment of metals and alloys."
163. Then, comes meaning of the term "industry". The term 'industry' is not defined in any of the statue dealing with environment.
164. Therefore, we have to go to understand this term by applying common parlance or trade parlance or common sense concept. In common parlance, the term 'industry' refers to an economy activity i.e. concerned with production of goods, extraction of minerals or provision of services. The term is also understood to constitute economic activity concerned with processing of raw material and manufacturing of goods in factories. The term 'industry' can be used as singular as well as plural.
165. The definition of industry given by Michael Porter in 1979 was "group of competitors producing substitutes that are close enough that the behavior of any firm affects each of the others either directly or indirectly". It can be defined as "a group of companies offering products or services that are close substitutes for each other, that is, products or services that satisfy the same basic customers' needs".
166. In Merriam Webster dictionary, the definition of industry is (a) manufacturing activity as a whole; (b) a distinct group of productive or profit-making enterprises, (c) a department or branch of craft, art, business, or manufacture; especially; one that employs a large personnel and capital especially in manufacturing and (d) systematic labor especially for some useful purpose or the creation of something of value. 110
167. The term 'industry' is also defined under Section 2(j) of Industrial Dispute Act, 1947 (hereinafter referred to as 'ID Act, 1947') which reads as under:
"(j) industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen;"
168. The above definition of industry under Section 2(j) of ID Act, 1947 was amended by substitution vide Act 46 of 1982, as under:
(j) "industry" means any systematic activity carried on by co-
operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--
(i) any capital has been invested for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit,"
169. However, it is made clear that this definition of industry, amended vide Act 46 of 1982 was not enforced.
170. Parliament has enacted the 'Industrial Relation Code, 2020' (hereinafter referred to as 'IRC 2020') with a view to substitute ID Act, 1947 and some other enactments. IRC 2020 bill was passed by Lok Sabha on 22.09.2020 and Rajya Sabha on 23.09.2020. It was assented by President of India on 28.09.2020 and published in the Gazette of India (Extraordinary), dated 29.09.2020. IRC 2020 also defines the term industry in Section 2(p) as under:
"(p) "industry" means any systematic activity carried on by co-
operation between an employer and worker (whether such worker is employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not, -
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(i) any capital has been invested for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit, but does not include-
(i) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or
(ii) any activity of the appropriate Government relatable to the sovereign functions of the appropriate Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or
(iii) any domestic service; or
(iv) any other activity as may be notified by the Central Government;"
171. We have referred to the definition of industry in IRC 2020 to complete the follow up of ID Act 1947 but find it appropriate to mention that Section 1 sub section 3 of IRC 2020 states that the provisions of IRC 2020 shall come into force on such date as Central Government may by notification in the official Gazette appoint but no such date has been notified till date and, therefore, IRC 2020, though enacted, but not enforced yet.
172. For the purpose of item/entry 3(a) of Schedule in EIA 2006, Tribunal in Ardent Steel Ltd. (supra) has referred to the definition of industry in ID Act, 1947, and has said in para 21 as under:
"21. In relation to the expression 'industry' appearing in the Industrial Disputes Act, 1947 and Allied Acts, the Courts have taken a view that it should receive liberal construction as it falls in a socio welfare legislation and is intended to achieve the larger public interest relating to workmen."
173. Having considered the terms "metallurgy" and "industry" separately, now we proceed to consider the meaning of the concept, 'metallurgical industry'.
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174. Metallurgical industries are defined stating that the same can be broadly divided into primary and secondary metal production operations. Primary refers to the production of metal from ore. Secondary refers to productions of alloys from ingots and to recovery of metal from scrap and salvage.
175. The term 'metallurgical industry' refers to exploration, mining, cleaning, melting and rolling of metal minerals. There can be different types of metallurgical industries like black metallurgical industry (ferrous metallurgical industry; non-ferrous metallurgical industry; rare metallurgical industry and powder metallurgical industry.
176. In common and technical parlance, a metallurgical industry is broadly divided into primary and secondary metal production operations.
177. In English Dictionary, the term 'metallurgical industry' is defined as "industry concerned with the extraction, refining, alloying and fabrication of metals."
178. Metallurgy is a domain of materials science and engineering that studies the physical and chemical behavior of metallic elements, their inter-metallic compounds, and their mixtures, which are known as alloys. It also encompasses the study of exotic material, pure and combined which has application in various industries. There are three kinds of metallurgical processes i.e.,
(a) Physical metallurgy,
(b) Extractive metallurgy and
(c) Mineral processing.
179. There is a recent edition of powder metallurgy. Mineral processing involves gathering mineral products from the earth's crust. Extractive 113 metallurgy involves extracting metal from ore. Physical metallurgy deals with development of metallic alloys needed for different types of manufacturing and construction and actual manufacturing of metallic products. Powder metallurgy is metal forming process performing precision metal components from metal powders. The metal powder is first pressed in two product shape at room temperature. This is followed by heating (sintering) that causes the powder particles to fuse together without melting.
180. If we go through item/entry 3(a) of Schedule of EIA 2006, column 3 also contemplates two types of metallurgical industries i.e., primary metallurgical industry and secondary metallurgical processing industry.
181. Both these terms have been considered by this Tribunal in Ardent Steel Ltd. (supra) and the relevant extract of the judgment recording opinion on these two terms contained in para 22 reads as under:
"...Thus, it is necessary to know what exactly both these expressions mean.
Primary Metallurgical Process Primary metallurgical process refers to the production of metal from ore, which includes, ore extraction, ore beneficiation, pelletization or sintering and metal extraction.
Secondary Metallurgical process Secondary metallurgical process refers to production of alloys from ingots and to recovery of metal from scrap and salvage. The process includes casting, molding, forging alloy making, re-rolling etc. It includes processes like melting, giving aimed shape to the final output, through forming, poring liquid metal and alloys to the mold cavity and forging."
182. We also find a document available in public domain, i.e., 'Technical EIA Guidance Manual for Metallurgical Industry' (hereinafter referred to as 'TEIAGMFMT') prepared for MoEF, Government of India by IL&FS Ecosmart Limited, Hyderabad, published in August 2010. The document shows that the project included Dr. Nalini Bhatt, Advisor, MoEF and Dr. T Chandni, Director, MoEF. Expert Core & Peer Committee is chaired by 114 Dr. V. Rajagopalan, IAS, Additional Secretary, Ministry of Chemicals & Fertilizers and its core members included Prof. S.P. Gautam Chairman, CPCB, Advisors MoEF besides the officials of IL&FS.
183. Chapter 3 of TEIAGMFMT is titled as "About Metallurgical Industry Including Process And Pollution Control Technologies". Report says that Metals can be broadly classified into two categories, 'ferrous' and 'non- ferrous' metals based on characteristics and quality of metal. Metallurgical processes of ferrous and non-ferrous metals can be broadly divided into primary and secondary based on the raw materials and the method of processing. Classification of metals on commercial identity is described as under:
"Commercial classification groups the metals into ferrous and non- ferrous. In the first category it places iron which is used in a great variety of alloys with carbon known as iron and steel. In some metallurgical text books, non-ferrous metals are divided into heavy, such as copper, nickel, lead, zinc and tin; and light among which aluminum is a commercially important metal. Specific gravities of heavy non-ferrous metals range between 7 and 11 (in round figures) while in light metals is below 4. In addition to the specific gravity, there are many other commercial classifications like noble (or precious) (gold and silver among others); minor (As, Sb, Bi, Cd, Hg, Co); refractory (W, Mo, Ta, Nb, Ti, Zr, V); scattered (Ge, In, Ga, Tl, Hf, Re); radioactive (Ra, Ac, Th, Pa, U and elements 93 to102); rare earth (Y, La, Sc among others) and ferroalloys (Cr, Mn)."
184. Then the terms 'primary metallurgical process' and 'secondary metallurgical process' are described as under:
"Primary metallurgical process: Primary metallurgy is the science of extraction of metals from ores and minerals. If there are more than one way of extracting a metal from its ore or mineral, then the process which gives a purer form of metal will belong to the category of primary metallurgy while the others fall into the secondary metallurgy category. e.g., in case of iron making, the blast furnace process is a primary metallurgical process, whereas other processes of iron making i.e., sponge iron or HBI making will belong to the category of secondary metallurgy. In India, the commercially most acceptable primary metallurgical processes in metal extraction from its ore include:
Aluminum production Lead smelting Copper smelting Zinc smelting 115 Steel production Secondary metallurgical process: Secondary metallurgical processes are the production processes that start with the output of the ore reduction process, scrap, salvage and ingots as input to the industry and its products are semi-finished products and finished products. It includes the melting, giving the aimed shape to the final output, through forming, pouring liquid metal and alloys to the mold cavity and forging. The processes and input materials used for the production of metals like sponge iron, foundries, re-rolling mills, mini-blast furnace (MBF) based steel plants, electric arc furnace (EAF) and induction furnaces, aluminum, lead, copper, zinc, and ferroalloys are given in table below:
Table 3-1: Material Inputs in Secondary Ferrous Metallurgical Processes Process Material Inputs Iron making Coal and Gas based Sponge Iron ore, coal Iron Plants Mini Blast Furnace Iron ore, coke, limestone Furnaces Induction and electric arc Steel scrap, liquid steel, direct reduced iron, furnace or /and pellets briquettes, metal scrap and Oil and coal fired pig iron, coke or carbonizes, ferroalloys, Preheating furnace limestone, gas fuel, bentonite and binding Cupola and crucible furnace materials.
Re-rolling, drawing, extrusion and forging
Rolling billets or slabs, bars, blooms, lubricating
Drawing oils, greases
Extrusion
Forging
Conventional casting in foundries
Molding Green sand, dry sand, clay, core sand, raw
Casting material, scrap, gaseous and solid fluxes
(CO2, He, N2, Ar, cl, AlCl, ZnCl, AlF)
Table 3-2: Material Inputs in Secondary Non-Ferrous Metallurgical Processes Process Material Inputs Copper New scrap produced in the fabrication of finished products or old scrap from automobiles and domestic appliances. Other materials with copper value include slags, drosses, foundry ashes and sweepings from smelters.
Lead Battery scrap Zinc New clippings, skimmings and ashes, die-cast skimmings,
galvanizer's dross, flue dust and chemical residue as sources of zinc. Most of the new scrap processed is zinc- and copper-based alloys from galvanizing and die-casting pots. Included in old scrap are zinc engraver's plates, die castings, and rod and die scrap.
Aluminum New and old scrap, sweated pig, and some primary aluminum. New scrap consists of clippings, forging, and other solids purchased from the aircraft industry, fabricators, automobile, and other manufacturing plants. Borings and turnings are byproduct of the machining of castings, rods and forging. Drosses, skimmings, and slags 116 are obtained from primary reduction plants, secondary smelting plants and foundries. Old scrap includes automobile parts, household items, and airplane parts.
185. During the arguments, we specifically enquired from the Learned Senior Counsel appearing for proponent/appellant as to whether its unit answers the term 'metallurgical industry' or not to which no specific reply so as to exclude appellant's unit could be given. In fact, it could not be seriously disputed that the term 'metallurgical industry' would include appellant's unit provided other conditions/parameters specified in other columns 3, 4 and 5 are also satisfied. It was argued that there was a lot of confusion amongst the Regulators themselves but as a matter of fact, when broadly the question was asked as to whether the term 'metallurgical industry' would include appellant's unit, it could not be disputed and no otherwise material has been placed before us to take a different view on this aspect.
186. From the above discussion, it is clear that any industry carrying on metallurgical process whether ferrous or non-ferrous, will be within the ambit of the term of metallurgical industries (ferrous or non-ferrous) as stated in column 2 of entry/item 3(a) of the Schedule of EIA 2006. However, in order to attract the provisions of EIA 2006, such industry must also satisfy the requirements stipulated in column 3, 4 and 5. In other words, the term metallurgical industry, in column 2 is very wide and covers all industries engaged in such process but all such industries would not attract the provisions of EIA 2006 unless the requirement/qualification/conditions prescribed in column 3,4 and 5 of item/entry 3(a) of Schedule to EIA 2006 are also satisfied. It takes us to move on column 3 which talks of firstly primary metallurgical industry. Every metallurgical industry carrying on primary metallurgical processes would be within the ambit of column 3 read with column 2 of item/entry 117 3(a) of Schedule to EIA 2006. As initially enacted there was no qualification/restriction/condition in respect of primary metallurgical industry. Even the amendment made vide notification dated 01.12.2009 brining changes in substitution of column 5 of item/entry 3(a) of Schedule to EIA 2006 has no application or impact on primary metallurgical industries and the same are without any restriction or condition. In other words, we can say that all primary metallurgical industries satisfy the requirement of item/entry 3(a) of Schedule and would attract the provisions of EIA 2006 for obtaining prior EC before commencement of project/activity i.e., also qualified by the words "all project mentioned in column 3 of entry 3(a) of the Schedule".
187. Second comes the sponge iron manufacturing units. Here column 3 and 4 dealing together and find that sponge iron manufacturing, where production capacity is less than 200TPD, the same are category 'B' project/activity and if the production capacity is more than 200TPD, then it is category 'A' project/activity. In both the cases, prior EC would be required. The difference is that in category 'B', the Competent Authority to grant EC would be SEIAA while in category 'A', the Competent Authority is MoEF&CC. Column 5 also shows that general conditions shall apply on sponge iron manufacturing units. This application of general conditions to sponge iron manufacturing units continued only till 30.11.2009 since in the amendment brought vide Notification dated 01.12.2009, this part is to omitted or substituted by a different provision, therefore, general conditions seems to apply to sponge iron manufacturing units on and after 01.12.2009. However, all sponge iron manufacturing units whether with the production capacity of less than 200 TPD or more than that would required prior EC.
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188. Next comes the secondary metallurgical processing industry. Here, we find that all secondary metallurgical processing industries as per the entries contained in column 3 and 4 would attract the provisions of EIA 2006 and categorization as 'A' and 'B' depends only on the production capacity as also whether they are toxic and heavy metal producing units or not. Column 3 says that all toxic and heavy metal producing units of more than 20000 tonnes/annum are category 'A' units. Therefore, all secondary metallurgical processing industries producing more than 20000 tonnes/annum and class as toxic and heavy metal producing units would require prior EC in category 'A'. This condition continued till 30.11.2009 though a minor variation has been introduced vide amended notification dated 01.12.2009 which we shall discuss thus a little bit later.
189. Secondary metallurgical processing industry involve in the activity of toxic and heavy metal producing units with production capacity of less than 20000 tonnes/annum would be in category 'B' and would require EC for which SEIAA shall be the Competent Authority. However, if secondary metallurgical processing industry is such which is non-toxic secondary metallurgical processing industry, there the industries having production capacity of less than 5000 tonnes/annum would be outside the ambit of EIA 2006 in as much as only such units with production capacity of more than 5000 tonnes/annum would be category 'B' projects/activities and require prior EC from SEIAA. Here also the situation has some minor change vide the amended Notification dated 01.12.2009 which has brought an amendment in column 5.
190. Column 5 show as it was initially enacted provided that general conditions shall apply for sponge iron manufacturing units but with the amendment Notification dated 01.12.2009 where general conditions are applied to all the industries which are covered under column 2, 3 and 4 of 119 entry/item 3(a) to the Schedule of EIA 2006. Then there is a note which has 3 paragraphs. One is an exemption provision stating that re recycling industrial units registered under the HSM Rules, are exempted. Therefore, metallurgical industries whether primary or secondary, if they are qualified to be called re-cycling industries and are registered under HSM Rules, such industries are exempted from the provisions of EIA 2006 and would not require prior EC. The second note talks of secondary metallurgical processing industrial units which involve operation of furnace only such as induction and electric arc furnace, submerged arc furnace, and cupola. If there is any mechanical industry comes within the term secondary metallurgical processing industrial units and the process involved in such units operates with the help of only furnaces such as induction and electric arc furnace, submerged arc furnace, and cupola, such secondary metallurgical processing industrial units would only come within the ambit of EIA 2006 if the production capacity is more than 30000 tonnes/annum and not otherwise.
191. Column 5 note 2 makes distinction on the basis of nature of furnace. We may place on record that the different furnace referred to therein have some different characteristics.
192. Electric Arc Furnace: An electric arc furnace uses electric arc generated by electrified electrode to melt metal and ore. In arc furnace steelmaking needs to produce arc heating through graphite electrode to melt metal and arc heat generated by electrode discharge is concentrated. Its temperature is above 3000°C, with fast melting speed and high production efficiency. Besides, arc furnace occupies a small area and is energy-saving and environmental friendly. It can remove sulfur, phosphorus and other impurities. Furnace temperature easy to control. 120
193. Induction Furnace: An induction furnace uses electrified induction coil to heat and melt metal. Induction furnace is a kind of electric heating equipment which uses the induction current to generate heat in the process of flowing in goods. Put the item in the sensor, when a certain frequency of alternating current passes through the sensor, due to electromagnetic induction, the item surface layer produces the same alternating frequency as in the sensor. But the current is induced in the opposite direction. This induced current forms a closed loop along the surface of the part called an eddy current. Under the action of eddy current and the resistance of the part itself, the electric energy is transformed into heat energy in the surface layer of the part. Heat the surface of the item.
194. Difference between electric arc furnace and induction furnace is mentioned as under:
i. Induction furnace heating is faster than arc furnace, heat is generated inside the charge (molten steel). After the melting of the furnace charge, the heat of the arc needs to be transferred to molten steel through slag, which belongs to indirect heating with poor thermal efficiency. Moreover, the furnace is in the shape of a basin, and a large part of the heat of the arc is dissipated through the cover and wall of the furnace.
ii. The removal capacity of sulfur, phosphorus and deoxidation of arc furnace is stronger than that of induction furnace. Induction furnace is cold slag, while arc furnace is hot slag. The nitrogen content of eAF steel is higher than that of induction furnace.
iii. The harvest rate of alloy elements smelted by induction furnace is higher than that of arc furnace, because elements volatilize and oxidation loss are high under high arc temperature.121
iv. Induction furnace steelmaking is more in line with environmental protection requirements, while arc furnace steelmaking produces a lot of waste gas, waste residue and noise, and has high energy consumption.
v. Induction furnace is the use of induction current heating principle to melt metal, will not increase carbon element in molten steel, but the smelted steel contains many impurities, steel impure. The graphite electrode is used to melt the metal through arc heating. The graphite electrode is finally consumed into the liquid steel to increase the carbon content.
vi. Induction furnace is superior to arc furnace in the process of electromagnetic stirring liquid steel.
vii. Induction furnace smelting has better control over temperature, time and stirring intensity than arc furnace.
viii. Induction furnace size is small, suitable for small and medium-
sized enterprises steelmaking. Electric arc furnace has large capacity, large scale and high production efficiency.
195. Submerged Arc Furnace: Submerged arc furnace (hereinafter referred to as 'SAF') are specific heating systems used to make a range of ferro-alloys via the use of electrical power. Electric arc furnace have been used for years together both for melting of scrap iron (open arc furnaces) and for reduction processes (SAF). In case of SAF, ore and reducing agent are fed to the furnace continuously from the top so that the electrodes are buried in the mix and the arc is submerged. The furnace is named SAF since the arc is submerged. The most common physical arrangement consists of a circular bath with three vertical electrodes arranged in a triangle. Six electrode furnaces with circular or rectangular baths are also used but they are less common. SAF have 122 found their application in more than 20 different main industrial areas such as ferro-alloy, chemical industry, lead, zinc, copper, refractory, titanium oxide, recycling, phosphorus etc.
196. The principle of a conventional SAF is electric resistance heating. Electric energy is converted into heat and reduction energy by using the resistance (R) of the burden or the molten slag, sometimes, reinforced by the electrical resistance of an arc between the slag and electrode. The energy is transmitted to the furnace hearth by carbon electrodes. The power of the furnace is the product of the hearth resistance and the square of the electrode current. Therefore, a limited increasing electrode current may result in a relatively large increasing load.
197. Characteristic of the process in SAF is that the electrode penetrates through the raw material downward up in the hearth on top of the metal pool. Normally the slag penetrates into this coke bed, but not as far as to be in contact with the tip of the electrode. The electric heat for smelting is developed in the immediate neighborhood of the electrode tip where the major part of the voltage drop is concentrated. The heated coke bed has a very high electric and thermal conductivity compared with the cold charge. Consequently, only a minor part of the current goes out from the electrode flanks. The coke bed also conducts the heat to the smelting zones away from the electrode. Reaction gases from the smelting zone, mainly CO (carbon mono oxide) gas, pass upwards through the descending raw materials partly preheating them giving off its sensible heat and partly causing solid state reduction of the higher iron oxides.
198. However, the thickness of the zone where materials are heated to reaction temperature is so small that the gas does not have sufficient 123 retention time to give an extensive reduction. 10 % to 20 % pre-reduction is normal in cold charge operation.
199. Features of SAF: A typical SAF with slag operation comprises a circular or rectangular shaped furnace shell with separated tap holes for slag and metal. For some processes the slag and metal is tapped through one tap hole and separated downstream via cascade casting or skimmers. The furnace shell is refractory lined and - if additional shell cooling is required by the process - water cooled by a special sidewall cooling system. The shell bottom is usually cooled by forced air ventilation. The electrodes are consumed by the furnace bath. The self baking electrodes with casings or prebaked electrodes are periodically extended by new pieces. The electrode is semi automatically slipped into the bath with the furnace at full electric load and with no interruptions of the furnace operation.
200. Cupola Furnace: A cupola or cupola furnace is a melting device used in foundries that can be used to melt cast iron, Ni-resist iron and some bronzes. The cupola can be made almost any practical size. The cupola can be made almost any practical size. The size of a cupola is expressed in diameters and can range from 1.5 to 13 feet (0.5 to 4.0 m). Overall shape is cylindrical and the equipment is arranged vertically, usually supported by four legs. Overall look is similar to a large smokestack. Bottom of the cylinder is fitted with doors which swing down and out to 'drop bottom'. The top where gases escape can be open or fitted with a cap to prevent rain from entering the cupola. To control emissions a cupola may be fitted with a cap that is designed to pull the gases into a device to cool the gases and remove particulate matter.
201. The shell of the cupola, being usually made of steel, has refractory brick and plastic refractory patching material lining it. The bottom is lined 124 in a similar manner but often a clay and sand mixture ("bod") may be used, as this lining is temporary. Finely divided coal ("sea coal") can be mixed with the clay lining so when heated the coal decomposes and the bod becomes slightly friable, easing the opening up of the tap holes. The bottom lining is compressed or 'rammed' against the bottom doors. Some cupolas are fitted with cooling jackets to keep the sides cool and with oxygen injection to make the coke fire burn hotter.
202. Operation of Cupola Furnace: To begin a production run, called a 'cupola campaign', the furnace is filled with layers of coke and ignited with torches. Some smaller cupolas may be ignited with wood to start the coke burning. When the coke is ignited, air is introduced to the coke bed through ports in the sides called tuyeres. Wood, charcoal, or biomass may also be used as fuel for the cupola's fire. Flammable gases also can be added to air and blown through the tuyere section of the furnace to add fuel to the fire.
203. When the coke is very hot, solid pieces of metal are charged into the furnace through an opening in the top. The metal is alternated with additional layers of fresh coke. Limestone is added to act as a flux. As the heat rises within the stack, the metal is melted. It drips down through the coke bed to collect in a pool at the bottom, just above the bottom doors. During the melting process a thermodynamic reaction takes place between the fuel and the blast air. The carbon in the coke combines with the oxygen in the air to form carbon monoxide. The carbon monoxide further burns to form carbon dioxide. Some of the carbon is picked up by the falling droplets of molten metal which raises the carbon content of the iron. Silicon Carbide and ferromanganese briquettes may also be added to the charge materials. The silicon carbide dissociates and carbon and silicon enters into the molten metal. Likewise, the ferromanganese melts 125 and is combined into the pool of liquid iron in the 'well' at the bottom of the cupola. Additions to the molten iron such as ferromanganese, ferrosilicon, silicon carbide and other alloying agents are used to alter the molten iron to conform to the needs of the castings at hand.
204. Pea-sized raw ore of metals such as iron, copper, lead, and even those containing precious metals can be melted in the cupola or blast furnace. Vannoccio Biringuccio describes how to separate metals and slag by pouring the melted ore contents from the furnace into a small pool then peeling off layers of slag or metal from the top as they cool into a solid.
205. The operator of the cupola is known as the "cupola tender" or "furnace master". During the operation of a tapped cupola (cupolas may vary in this regard) the tender observes the amount of iron rising in the well of the cupola. When the metal level is sufficiently high, the cupola tender opens the "tap hole" to let the metal flow into a ladle or other container to hold the molten metal. When enough metal is drawn off the "tap hole" is plugged with a refractory plug made of clay.
206. The cupola tender observes the furnace through the sight glass or peep sight in the tuyeres. Slag will rise to the top of the pool of iron being formed. A slag hole, located higher up on the cylinder of the furnace, and usually to the rear or side of the tap hole, is opened to let the slag flow out. The viscosity is low (with proper fluxing) and the red hot molten slag will flow easily. Sometimes the slag which runs out the slag hole is collected in a small cup shaped tool, allowed to cool and harden. It is fractured and visually examined. With acid refractory lined cupolas a greenish colored slag means the fluxing is proper and adequate. In basic refractory lined cupolas the slag is brown.
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207. After the cupola has produced enough metal to supply the foundry with its needs, the bottom is opened, or 'dropped' and the remaining materials fall to the floor between the legs. This material is allowed to cool and subsequently removed. The cupola can be used over and over. A 'campaign' may last a few hours, a day, weeks or even months.
208. When the operation is over, the blast is shut off and the prop under the bottom door is knocked down so that the bottom plates swing open. This enables the cupola remains to drop to the floor or into a bucket. They are then quenched and removed from underneath the cupola.
209. Note 2 of column 5 of the Schedule to EIA 2006 will be attracted only when the secondary metallurgical processing industrial unit involves operation of furnace as described above. But if there is any other operation involved, Note 2 will not come into picture.
210. Third part of the note again is an exemption provision applicable to such plants/units (other than power units) covered by item/entry 1(d) of Schedule if is running based on municipal solid waste (non-hazardous), such plants/units are also exempted from the requirement of prior EC. This is the simple analysis of entry/item 3(a) of the Schedule to EIA 2006 and in the backdrop of above, we have to examine whether the appellant's unit qualified the requirements as discussed above so as to become an industry whether in category 'A' or category 'B' requiring prior EC or ex- facie is to excluded from the clear meaning and termology of the term as discussed above.
211. In the present case, it is not disputed by the learned Senior Counsel appearing for appellant that the unit is engaged in the production of steel bars by use of re-rolling process. It is using re-heating furnace and as 127 explained in the written submissions re-heating furnace is used for MS ingots/billets.
212. Appellant has induction furnace and also re-heating furnace which is run by using fuel coal.
213. Re-heating Furnace and Their Types: As per information available in public domain, Re-heating furnaces are used in hot rolling mills to heat the steel stock (Billets, blooms or slabs) to the rolling temperatures of around 1200°C which is suitable for plastic deformation of steel and hence for rolling in the mill. Heating process in a re-heating furnace is a continuous process where steel stock is charged at the furnace entrance, heated in the furnace, and discharged at the furnace exit. Heat is transferred to the steel stock during its traverse through the furnace mainly by means of convection and radiation from the burner gases and the furnace walls.
214. The charging temperature of the steel stock can range from ambient temperature to 800°C. The target exit temperature of the steel stock is governed by the requirement of the process of rolling which is dependent on the rolling speed, stock dimension and steel composition. Steel quality aspects put constraints on temperature gradient and surface temperature. Fuel used in these furnaces can be solid, liquid, or gaseous fuel.
215. Size of re-heating furnace is usually expressed as the capacity to supply hot steel stock to the rolling mill from the cold stock and is expressed in tons per hour. The energy efficiency of re-heating furnace is usually defined as increase of steel stock heat content when heated from 10°C to 1200°C divided by the fuel energy (latent heat plus sensible heat) used for it.
128
216. Many design features of the furnace affects the energy efficiency. These include:
(i) type of burners,
(ii) furnace dimensions,
(iii) number of furnace zones,
(iv) type of wall and roof insulation,
(v) skid design, and
(vi) preheating of fuel and combustion air in recuperators by the hot flue gases coming out from the furnace exit. An efficient furnace is designed in such a way so that in a given time the steel stock as per furnace capacity is heated to a uniform temperature with the least possible fuel and man-hours. The parameters important for furnace design include:
(a) the quantity of heat to be imparted to the charge,
(b) Generation of sufficient heat which is available within the furnace to heat the steel stock as well as to overcome all steel losses,
(c) Transfer of generated heat to the surface of the steel stock to be heated,
(d) Equalization of temperature within the steel stock, and
(e) Loss of heat from the furnace to the minimum.
217. Classification of Re-heating Furnaces: Re-heating furnace classification can be done in four ways namely, (i) based on the method of heating, (ii) based on method of charging the reheating furnace, (iii) based on the movement of steel stock in the reheating furnace, and (iv) based on the heat recovery methods:
129
(i) Based on the method of heating, a re-heating furnace can be combustion heating type or electrical heating type. The combustion heating type furnace can use solid, liquid, or gaseous fuel.
(ii) Based on the method of charging, re-heating furnace can be classified as batch type or continuous type. In batch furnaces, the charged material remains in a fixed position on the hearth until heated to rolling/forging temperature while in continuous furnaces the charged material moves through the furnace and is heated to rolling temperature as it progresses through the furnace.
(iii) Based on the movement of steel stock inside the furnace, continuous furnace can be further classified as pusher furnace, rotary hearth furnace, walking beam furnace, walking hearth furnace, and roller hearth furnace.
(iv) Based on heat recovery, re-heating furnace can be either regenerative type or recuperative type. Regenerating type re-heating furnace uses regenerative burners while recuperative type furnace uses recuperators for heat recovery from the exhaust gases.
218. Re-heating furnaces are of the following types:
a) Batch furnace
b) Pusher type furnace
c) Rotary hearth furnace
d) Hearth re-heating furnace
e) Walking beam furnaces
f) Walking hearth furnaces
g) Roller hearth re-heating furnace.
219. For the purpose of the present case, it is not necessary to go into further details of the above arc and furnaces. Having understood the 130 nature and mechanism of various furnaces, we will find out the answer to Issue II in the light of facts disclosed in these Appeals.
220. Document along with written submissions by appellant on page 638-639 of Tribunal's paper book shows that appellant claimed existing project of rolling miss having capacity of MS ingots/billets of 27000 TPA (90 TPD), MS CTD/TMT Bars and MS Round of 150000 TPA (500 TPD). Heating furnace of 21 ton/hr and induction furnace of 9 ton/heat.
221. In the application submitted for grant of EC, appellant has said in para 7.4.5 and 7.4.6 that earlier appellant's unit was not covered under the provisions of EIA 2006 since it was a secondary metallurgical processing industry with production capacity of less than 60000 TPA. As we have already discussed above, we find nothing in item/entry 3(a) to Schedule of EIA 2006 which places a condition that secondary metallurgical processing industry would require EC only if production capacity if more than 60000 TPA and those which are having less than 60000 TPA production would not be covered. This claim by appellant is clearly contrary to the portions of EIA 2006. Giving history of existing Consent to Establish (hereinafter referred to as 'CTE') or CTO in para 7.4.6, appellant has said as under:
Details Document no. Date Validity Implementation status Details of The proposal is applied first time for obtaining Environmental Clearance as Earlier EC previously the project of Rolling Mill was not covered under the purview of Environmental Clearance (<60,000TPA, Secondary metallurgical processing industry) DETAILS RPCB/RO/BWD/OR- 30.06.2006 Valid For 3 Granted for CTD OF CTE 755/493 Years Or BARS ,TMT BARS Upto The (1,50,000MT/ Actual Annum) Date Of Production F(CPM)/Alwar(Tijara)/ 07.09.2012 05.04.2012 Granted for M.S. 8(1)/2011-2012/4737-4739 TO INGOTS -80TPD 31.03.2015 (24,000MTPA) F(CPM)/Alwar(Tijara)/ 29.04.2015 03.10.2013 Granted for COAL 8(1)/2011-2012/4411-413 TO GASIFIER 30.09.2016 1.50TPH 131 F(CPM)/Alwar(Tijara)/ 02.11.2015 02.11.2015 Granted for 8(1)/2011-2012/3259-3261 TO M.S.INGOTS/ 31.10.2018 BILLETS - 90TPD (27,000MTPA) F(CPM)/Alwar(Tijara)/ 21.06.2018 12.12.2015 Granted for COAL 8(1)/2018-2019/1768-1770 TO PULVERIZER-1 30.11.2018 no.
F(CPM)/Alwar(Tijara)/ 21.06.2018 12.10.2016 Granted for DG 8(1)/2018-2019/1765-1767 TO SET 1(125kVA) -G 30.09.2021 SET 1- (380kVA) RPCB/RO/BWD/OR-527/858 27.07. 2007 31.07.2008 Granted for CTD BARS (1,50,000MT/ Annum) RPCB/RO/BWD/OR-755/1465 18.08.2009 31.07.2010 Granted Extension of CTO For CTD BARS (1,50,00MT/ Annum 16.01.2012 01.08.2010 Granted for MS F(CPM)/Alwar(Tijara)/ TO CTD/TMT BARS 8(1)/2011-2012/7462-7464 31.07.2013 & MS ROUND (1,50,000MT/ Annum) 04.05.2015 01.08.2013 Granted for MS F(CPM)/Alwar(Tijara)/ DETAILS TO CTD/TMT BARS 8(1)/20 11-2012/67-69 OF CTO 31.07.2016 & MS ROUND (1,50,000MT/ Annum) F(CPM)/Alwar(Tijara)/ 21.06.2018 01.08.2016 Granted for MS 8(1)/2018-2019/17671- TO CTD/TMT BARS 1773 31.07.2021 & MS ROUND (1,50,000mt/ Annum) & M.S.INGOTS/ BILLETS (90TPD) Applied for Pending for want
--- renewal of of Environmental
--
CTO and Clearance.
222. The very first CTE issued on 30.06.2006 for a period of 3 years was granted of CTD bars, TMT bars with quantity of 1,50,000 MT/annum. Project of appellant was clearly within the ambit of para 3(a) to Schedule of EIA 2006 in as much as it was not a toxic and heavy metal secondary metallurgical processing industry with production capacity of 1,50,000 MT/annum, it was clearly a category 'B' project covered by item/entry 3(a) to the Schedule of EIA 2006. Later on, the subsequent consents shows increase in production for different items besides production of additional 132 item i.e., MS ingots/billets. In para 7.4.7 unit configuration and capacity of the existing project has been given on page 643-644 of the paper book of Tribunal which shows as under:
"7.4.7 The unit configuration and capacity of proposed project is given as below:
S. Existing Capacity Total Capacity
No. Product (MTPA)
(MTPA)
27,000 TPA
1. MS Ingots/Billets 27,000 TPA (90TPD)
(90TPD)
MS CTD/TMT Bars & MS 1,50,000 TPA 1,50,000 TPA
2.
Round (500TPD) (500TPD)
3. Induction Furnace 9Ton/Heat 9Ton/Heat
4. Heating Furnace 21Ton/Hr 21Ton/Hr
223. Further, here the heating furnace of the appealing unit was using the fuel coal and its consumption has been shown as 500 MT/month. It cannot be doubted that coal furnace was capable of causing pollution of large extent and even the note under column 5 was not applicable to the case of appellant. It is stated that appellant has applied for natural gas to be used for re-heating furnace showing its requirement of 7000 SCM/day.
The application was submitted on 25.03.2019 but the fact remains that even at present the unit is using only coal in its heating or re-heating furnace.
224. In our view of very inception, the project/activity in question commenced and run by appellant was within the purview of EIA 2006 and, therefore, we find no valid reason for the appellant for not obtaining prior EC for the said project and continued to run the same without any EC.
Even after expiry of the period granted by this Tribunal vide its judgment in OA 55/2019(WZ) (supra). In all fairness, Tribunal granted opportunity to secondary metallurgical processing industries to obtain EC within one year. The judgment was delivered on 12.02.2020 and the period of one year expired on 11.02.2021 but the appellant in its own wisdom and 133 fallacious motions decided not to obtain EC under EIA 2006. Therefore, it is clearly guilty of running its unit in violation of law and is liable to suffer the consequences thereof.
225. We hold that entry 3(a) as it was introduced in EIA 2006 and also as amended in 2009, but itself, made EC necessary for the unit of the kind, appellant is running. The arguments advanced otherwise are rejected.
226. Issue II is answered accordingly.
227. Issue III and IV: Both these issues raising question of alleged confusion are inter-connected and over-lapping, therefore, can be considered and answered together.
228. In its written submissions, appellant has relied firstly on a letter dated 13.12.2010 sent by Dr. P.L. Ahujarai, Scientist 'F' on behalf of MoEF.
Copy of the above letter is annexure-15 (page 209) to Appeal II. We have pursued the above letter. This communication was issued in reference to a clarification sought by M/s. Salsan Steels Pvt. Ltd. H. No. 222, West Gurunanakpura, Jalandhar, Punjab. The above company had it manufacturing unit of TMT bars with 200 MT/day at village Ramnagar, District Una in Himachal Pradesh. It appears that initially MoEF by its letter dated 25.10.2020 took a view that the above production unit of M/s.
Salsan Steels Pvt. Ltd. requires EC under EIA 2006. However, the proponent sent letters dated 29.10.2010 and 12.11.2010 requesting to re-
consider the proposal. The proposal was re-considered in the light of the facts of production process in that case, as is evident from para 2 and 3 of the letter dated 13.10.2010. We find it appropriate to reproduce the same here under:
"2. The matter has been examined in the Ministry. It is noted that the manufacturing process for TMT bars involves processing of the billets in the steel processing unit. The TMT bar mill will 134 comprise charging grade and pusher type re-heating furnace. The input material will be mild steel billets. The billets will be charged and heated at a temperature of 1200C in the reheating furnace and rolled in the rolling mill. Due to successive rolling in the mill train, the billets get converted to finished bars. These bars will undergo thermos mechanical treatment.
3. As per the EIA Notification, 2006, the non-toxic secondary metallurgical processing industries about 5,000 ton/annum listed as 'B' category required prior environmental clearance. However, as per the EIA Notification amended on 1st December, 2009, "the secondary metallurgical processing industrial unit involving operation of furnaces only such as induction and electric arc furnaces, submerged arc furnace and cupola furnace with capacity more than 30,000 ton/annum would required prior environmental clearance".
229. The proponent was having much lesser production capacity, manufacturing only TMT bars and not MS ingots/billets and using only re-heating furnace. Since the amendment Notification dated 01.12.2009 of EIA 2006 provided that secondary metallurgical processing industrial units involving operation of furnaces only such as induction and electric arc furnace, submerged arc furnace and cupola furnace with capacity more than 30000/annum would require prior EC, in the light of the said amendment and considering production capacity, MoEF, in its reply dated 13.12.2010, opined that the above proponent may not attract the provisions of EIA 2006 as amended on 01.12.2009. However, facts in the present case are totally different.
230. It is true that in para 5 of the letter dated 13.12.2010, the language used in the correspondence is slightly wider but the above letter is a part of correspondence between proponent and MoEF and cannot be read as a statute. It has to be read in the light of the facts engaging attention of the authorities in that case and with different facts, the conclusion drawn in a case with distinguishing facts, cannot be blindly applied and adopted. No paragraph or line of the letter can be read in isolation. The entire matter has to be read and understood in the context. 135
231. The above letter, in our view, nowhere lay down as a matter of law that EIA 2006 was not applicable to all secondary metallurgical processing industrial units involving operation of re-heating furnaces. Neither in the memo of appeal, nor in any other document, nor during the course of the arguments, nor in the written submissions, anything has been placed before us which shows that manufacturing process of the products etc. of the appellant are identical to that of M/s. Salsan Steels Pvt. Ltd. in respect whereof letter dated 13.12.2010 was issued by MoEF. This is one reason for which we have no manner of doubt that the above letter neither helps the appellant nor can be said to be a reason for creating alleged confusion in respect of applicability of entry/item 3(a) to the units like appellant's unit.
232. The further reason for non-suiting the present appellant on the basis of the letter dated 13.12.2010 is that the above letter is only a correspondence and neither can be construed as an amendment or explanation or clarification to EIA 2006 which is a statutory provision made under the provisions of EP Act, 1986. Even otherwise, where statutory provisions are self-same, clear, admits no ambiguity or doubt, same cannot be explained in a different way by means of any executive action, that too by taking recourse to a correspondence entered with an individual proponent considering its matter particularly, in the light of facts of that proponent.
233. Next reliance is placed on the letter dated 04.12.2018 issued by Shri Nazumiddin, Divisional Head, IPC-II on behalf of CPCB. It is again correspondence between CPCB addressed to Shri Sharath Kumar Palleria, Director, Impact Assessment Davison, MoEF&CC, New Delhi. The above letter only makes recommendation for issuance of clarification on the point raised by Chhattisgarh Environment Conservation Board on the 136 representation of Chhattisgarh Steel Re-rollers's Association and one individual Mr. Lalit Kumar Singhania. Letter dated 04.12.2018 refers to representation received from Chhattisgarh Steel Re-rollers's Association, contain comments of CPCB and, thereafter, request of CPCB to MoEF&CC to issue clarification in this regard. The entire letter reads as under:
"
"Rolling is a metal forming process wherein steel (or any other metal or alloys) is converted into products of required shape by physical force or a combination of heating and physical force. It is not a Primary or Secondary steel making process. Therefore, stand-alone steel re-rolling mill does not appear to be covered under EC notification, which is applicable on primary and Secondary Metallurgical processing industrial unit."
It is requested that necessary clarification may be issued to Chhattisgarh Environment Conservation Board in this regard, as per the matter pertain to MoEFCC, IA Division."
234. The comments of CPCB shows that it considered the process of rolling mill but thereafter, made its recommendation in respect of stand- alone steel re-rolling mill without appreciating distinction between rolling and re-rolling mills and process involved therein.
235. Be that as it may, the further document issued by MoEF&CC shows that it did not accept the opinion of CPCB and issued its own clarification vide letter dated 14.08.2019 which is at page 240 of Tribunal's paper book. The above letter was addressed to the Chairman, SEIAA, Chhattisgarh, which is as under:
"It is to inform that the Ministry is in receipt of various representations with regard to applicability of EIA Notification 2006 on steel re-rolling mills. The representations received earlier in this regard have been deliberated upon suitably in the Ministry.
2. As on date the Technical EIA Guidance Manual of the MoEFCC for Metallurgical Industry classifies re-rolling as a secondary metallurgical industry.
3. As per EIA Notification 2006 secondary metallurgical industries are to be appraised for EC as category B projects under schedule 3(a) Metallurgical industries. In case of secondary metallurgical processing industrial units, those projects 137 involving operation of furnaces only such as induction and electric arc furnace, submerged arc furnace and cupola with capacity more than 30000 tonnes per annum (TPA) would require Environmental Clearance.
4. In view of the above, you are herby requested to appraise the steel re-rolling proposals as per the provisions of EIA Notification, 2006.
5. This issues with the approval of the competent authority."
236. From the perusal of the above letter dated 14.08.2019, we find that MoEF&CC made it very clear that a re-rolling mill comes within the ambit of the term "secondary metallurgical industry" and for this purpose it relied on TEIAGMFMT. However, where such an industry answers the description provided in Note 2 of column 5, entry/item 3(a) of the Schedule to EIA 2006, there production would become relevant and requirement of EC would be in respect of only such units which have production capacity of more than 30,000 tonnes/annum.
237. In the present case, total production capacity of appellant's unit is much more and, therefore, above letter also does not help it in any manner. In the context of above documents, we do not find that any confusion was created by any of the authority at any point of time. Infact, in the zeal of finding some explanation for not obtaining EC, appellant has relied on certain correspondence and documents which have no application to do away requirement of EC in appellant's case. On the other hand, as we have discussed above, provisions of EIA 2006 entry 3(a) are/were very clear, categorical and leave no manner of doubt to conclude that the unit of appellant was within the ambit of EIA 2006 and it required prior EC for valid functioning of unit.
238. Next reliance is placed by appellant on the judgment of this Tribunal in OA 55/2019(WZ) (supra) delivered on 12.02.2020. In the above matter, a complaint by two applicants namely Gajubha Jesar Jadeja and Bharat 138 Kumar Patel was made that M/s. Chromeni Steel Pvt. Ltd. (hereinafter referred to as 'CSPL') impleaded as respondent 7 in the said OA, was functioning its unit without obtaining EC and also extracting ground water illegally without obtaining No Objection Certificate (hereinafter referred to as 'NOC') from Central Ground Water Authority (hereinafter referred to as 'CGWA'). The facts stated in OA 55/2019(WZ) (supra) show that a Chinese Sunrise Group entered into an agreement and signed memorandum of understanding with the Government of Gujarat in January 2017 to acquire certain land for running a Cold Rolled Stainless Steel manufacturing industry. The unit was to function through a subsidiary company namely CSPL wherein half of the Directors were from Chinese group. As per information in public domain, initial investment in project was around Rs. 6000 Crores. Government of Gujarat acquired land for the said project and handed over to the company. CTE issued on 20.01.2018 shows proposed production as 7 lakh MT/annum i.e., 58,333 MT/month of cold rolled stainless steel. The process of manufacturing involved chemical process and facilities such as picking, annealing, acid regeneration plant etc. It was claimed that the process was covered by the term "metallurgical industry" and, therefore, EC was mandatory but the same was not obtained. Further complaint of illegal withdrawal of ground water was also made in the said OA.
239. Tribunal examined the matter on 27.08.2019 and constituted a Committee comprising SEIAA Gujarat, Gujarat State PCB, District Collector, Kutch and Regional Director, CGWA to verify factual facts and submit report. The said Committee submitted report dated 15.10.2019 stating that the question, whether EIA 2006 is applicable to a project involving process of rolling, annealing furnace, pickling and skin pass rolling is within the domain and jurisdiction of MoEF&CC. The matter was 139 examined by Tribunal on 15.10.2019 when letter dated 14.08.2019 sent by MoEF&CC was also relied on by Counsel appearing for appellant which says that re-rolling process is a secondary metallurgical industry. Tribunal found that where the facts are identical as that were found when letter dated 14.08.2019 was issued, the said letter would cover the subsequent matter but without taking any final decision, Tribunal left it to MoEF&CC to issue clarification as to whether the position indicated in the letter dated 14.08.2019 shall be applicable to CSPL also or not. When the matter was again taken up, Tribunal considered the report of Environment Appraisal Committee (EAC) (industry-I) held on 23rd - 24th December, 2019 wherein the project activity of CSPL was considered and Committee held that the same falls under category 'B' of entry 3(a) of the Schedule of EIA 2006.
240. Committee also held that there were some more issues in respect of whereof some clarification may be required from MoEF&CC and these issues are:
i. Definition of secondary metallurgy units;
ii. Clarification about types of furnaces under applicability of MoEF&CC notification 2006;
iii. Clarification on re-rolling vs. cold rolling in the context of EC.
241. Committee also suggested, where re-rolling/cold rolling units were established and operating with valid CTE/CTO, MoEF&CC may consider to give a breathing period for obtaining EC to such industries and the industries may be allowed to continue their operation for a period of one year.
242. Minutes of the meeting held on 23rd - 24th December, 2019 of EAC (Industry-I) as contained in para 14.21.20, mentioned in Tribunal's order are reproduced as under:
140
"14.21.20 In view of the forgoing and after detailed deliberations, the Committee recommended the following:-
i) Project activity of CSPL falls under Category B of Schedule 3 (a) Metallurgical Industries (ferrous and non-ferrous) of EIA Notification, 2006.
ii) The committee also noted that there are a few issues which may have diverse interpretations. The reports submitted by the Committee formed by the Hon'ble NGT and the joint inspection report by the Regional Office of Bhopal and RO of GPCB for Kutch, have also left the final interpretation to the MoEF&CC. It is also noted that the present unit has obtained CTE from CPCB which is a Statutory authority. There may be similarly placed cases in the country. This shows that there is a scope and need for further clarification in the matter regarding certain issues so that there is no subjective interpretation in future. These issues are (1) definition of secondary metallurgy units for the purpose of EIA process, (2) clarification about the types of furnaces under applicability of MoEF&CC notification 2006 and (3) clarification re rolling vs. cold rolling in the context of Environment Clearances. Therefore, for further smoothening the EC process for present unit and proposals in future, the MoEF&CC may consider issuing further clarifications.
iii) In order to address to instant and similar cases where such re-
rolling/cold rolling units are established or operating with a CTE/CTO from the concerned State Pollution Control Boards, the Ministry may consider directing the State Pollution Control Boards to get a list of all such cases and take further quick actions so that they apply for EC and get covered by the EIA notification 2006. Since, these units are established or operating under the CTEs/CTOs obtained from a statutory authority i.e. the respective State Pollution Control Boards, a period of one year may be allowed for this recommended conversion to EC. This will also ensure that the units remain in operation for the allowed period and closures, unemployment and related social issues/unrests are avoided. During this period of one year, they will have to follow all the conditions imposed under the CTE.CTO."
243. In the subsequent proceedings, MoEF&CC without anything further conveyed that it has accepted the suggestions/proposal made in para (iii) by EAC and looking to the said fact, Tribunal disposed of the matter vide judgment dated 12.02.2020 and the relevant extract of the judgment contained in para 11 and 12 reads as under:
"11. Considering the above facts and circumstances when the foundational question involved in the case have been dealt with 141 effectively by the MoEF, in our considered opinion, nothing further would survive for our consideration.
12. It would appear from the sequence of events that the position that subsisted earlier in respect of Cold Rolled Coils (CRC) of stainless steel was quite obscure as it was not clear as to whether such activity would require environmental clearance under the EIA notification, 2006. The MoEF upon consideration of the expert opinion appears to have now clarified that such industry do require prior environmental clearance but, having regard to the fact that there were a large number of such mills operating on the strength of CTE and CTO, opportunity should be provide to such units to fall within the EC regime by granting a period of at least one year to operate for the purpose."
244. It is thus clear that CSPL was a unit involved in production of "cold rolled stainless steel". EAC itself took a decision on 23rd - 24th December, 2019 that provisions of EIA 2006 are applicable and EC is required. However, in the interest of justice and balancing the interest of the parties, proposal was made that similarly situated units to be permitted to obtain EC within next one year which was accepted by MoEF&CC and it was consequently acted upon and accepted by Tribunal also.
245. We find nothing therein which could confer any benefit upon appellant to create any doubt with regard to applicability of EIA 2006 to the kind of the industry appellant has. Be that as it may, since a liberty was given to obtain EC within one year by order dated 12.02.2020, it was incumbent upon appellant to obtain EC within the aforesaid period. Without commenting upon the earlier period when appellant unit has functioned without EC, we enter no manner of doubt to hold that running of appellant's unit at least on and after 11.02.2021 is clearly illegal.
246. Appellant has also relied on letter dated 22.10.2020 issued by MoEF&CC which is annexure 19 at page 222 in Appeal II. We find that this letter only refers to the judgment of Tribunal, 3 decisions of EAC and thereafter, has directed all concerned authorities to prepare a list of re- rolling/cold rolling units established or operating with CTE/CTO but 142 without obtaining prior EC for taking further action. Relevant directions contained in para 2 and 3 of the letter dated 22.10.2020 are reproduced as under:
"2. Considering the above, it has been decided by the Competent Authority to obtain a list of re-rolling/cold rolling units established or operating with a CTE/CTO without obtaining prior Environment Clearances from MoEF&CC/concerned SEIAA for taking further necessary action in the matter. Accordingly, all the State Pollution Control Board (SPCBs)/Pollution Control Committees (PCCs) are hereby requested to send the list of such units under their jurisdiction in the format given as below preferably by 30/10/2020:
Name of the State/UT:
S. Name & Contact Capacity Details Details Remarks
No. Address details (TPA) of CTEs of
of the (Telephone since latest
Unit & email) inception CTO
3. Based on the above list, SPCBs/PCCs are further requested to take further action as per direction of Hon'ble NGT so that these units apply for fresh EC and get covered under EIA Notification, 2006, if applicable."
247. We may add at this stage that RSPCB in a specific query made by us as to whether the list was prepared as directed by MoEF&CC vide letter dated 22.10.2020 and whether such list included the name of appellant, responded in positive and said that the list was prepared wherein appellant was shown as unit requiring EC under EIA 2006. Letter dated 24.12.2020 leaves no manner of doubt that RSPCB specifically directed appellant to obtain EC in the light of Tribunal's judgment dated 12.02.2020 passed in OA 55/2019(WZ) (supra) and MoEF&CC letter dated 22.10.2020. Contents of RSPCB's letter dated 24.12.2020 which is addressed to appellant, are reproduced as under:
"With reference to above, in compliance to MOEF&CC letter dated 22.10.2020 and Hon'ble NGT's order dated 12.02.2020, you are directed to apply for fresh Environmental Clearance to the competent authority and get covered under EIA Notification 2006, if applicable, before 11.02.2021 and submit details and copy of the same to the State Board."143
248. Appellants did not act despite RSPCB's letter dated 24.12.2020 and instead rely on a letter dated 08.03.2020 which has been sent by Bhiwadi Rolling Mill Association to MoEF&CC, New Delhi. The letter says that if the definition of TEIAGMFMT, followed vide MoEF&CC's letter dated 14.08.2019 and Tribunal's order to be acted upon, it would mean that all the activities right from the recovery of metals from metallic waste of making of the metallic products from pure metals, would get classified as secondary metallurgical process. The association was of the view that the matter require review and amendment of EIA 2006. Therefore, a proposed discussion paper was sent for necessary action in this regard.
249. The above letter, does not help appellant as it is also admitted therein that re-rolling steel bar making industries are covered by EIA 2006 though the association wanted exclusion. However, one important aspect is that the above letter of the association and the discussion paper refer to a letter dated 17.12.2008 (page 235 of the paper book of Tribunal in Appeal II) issued by MoEF&CC addressed to Chairman, Haryana State Pollution Control Board, Chandigarh (hereinafter referred to as 'HSPCB'). It was a clarification on applicability of EIA notification on forging/rolling units. It refers to HSPCB's letter dated 10.10.2008 and says that forging/rolling units are covered under category 'B' of entry/item 3(a)(c) of the Schedule to EIA 2006. SEIAA is the Competent Authority for appraisal. Relevant paragraphs 2.0 and 3.0 are reproduced as under:
"2.0 The Ministry has examined, the above mentioned request. The process of forging/rolling is covered under secondary metallurgy and the secondary metallurgical activities are covered under para 3(a)(c) of EIA Notification, 2006 with threshold limit of 5000 TPA. This activity is covered under 'B' Category and shall be appraised at SEIAA level (except the proposals covered under general Condition monitored in schedule of EIA Notification, 2006 which shall be appraised at central level).
3.0 You are requested to direct the concerned project authorities to approach the State Environmental impact Assessment Authority Haryana for obtaining, the clearance under said notification."144
250. Appellant has relied on its letter dated 17.06.2021 (page 624 of Appeal II) stating that he replied to RSPCB's direction of obtaining EC vide letter dated 24.12.2020. Having gone through the said letter, we find that the entire reason given in the letter dated 17.06.2021 is difference in process between CSPL and appellant's unit but we have already discussed that appellant's unit on its own satisfy the requirement and conditions of item/entry 3(a) of the Schedule and falls within the ambit of EIA 2006. Hence, it was mandatory for it to obtain EC. The above reply, is own understanding of appellant and has no legal consequence on the issue in question. However, it has also come on record that RSPCB found no ambiguity or confusion but categorically asked appellant to obtain EC vide letter dated 16.08.2021 (page 630 of Appeal II).
251. RSPCB minces no words in making it very clear that appellant was running illegally without EC and issued show cause notice, communicating intended refusal of application for CTO on the ground of want of EC. The relevant extract of the letter dated 16.08.2021 reads as under:
"1. Whereas the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter called as the "Air Act") came in to force in whole of the State of Rajasthan w.e.f. 16.6.1981;
2. And whereas the Water (Prevention and Control of Pollution) Act, 1974 (Hereinafter called as the "Water Act") came in to force in whole of the State of Rajasthan w.e.f. 23.3.1974;
3. And whereas the said Air and Water Acts were enacted to provide for the prevention & control of Air and Water pollution and for the maintaining and restoring the wholesomeness of air and water respectively;
4. And whereas keeping this in view the Rajasthan State Pollution Control Board (hereinafter called as the "Board") has been conferred powers to take such steps as are necessary for the prevention control & abatement of air and water pollution.
5. And whereas industry is being operated in the name & style of M/s Rathi Special Steels Ltd., at SP-29 & F-20-24, RIA, Khushkhera, Tijara Distt- Alwar and engaged in manufacturing of 145 M.S. CTD/ TMT Bars & MS Round and M.S. Ingots/Billets which generate polluted trade/domestic effluent and air emissions.
6. And whereas consent to operate was granted under the Air & Water Act vide letter dated 21.06.2018 valid up to 31.07.2021 subject to conditions mentioned therein.
7. And whereas industry has applied for consent to operate (renewal) vide application dated 10.03.2021.
8. And whereas application & documents submitted by the industry were examined & found that industry has not submitted following documents/details along with consent application:-
(i) Copy of EC in compliance of NGT order dated 12.02.2020.
(ii) Details of fuel being used in all the air emission sources with Pollution Control Measures adopted & stack height provided.
(iii) Time bound Action plan and estimate for point wise compliance of State Board's order dated 26.12.2019 w.r.t, mechanism for environment management of CPA & SPA.
(iv) Clarification and Application for Consent to Establish for increase in capital investment from Rs. 62.79 Crore to Rs.
72.84 Crore (i.e. Rs. 10.05 Cr.) along with applicable consent fee of Rs. 60,000/-.
(v) Self certified production figures of the last 03 years.
(vi) Air/water monitoring report from MoEF & CC approved laboratory or monitoring report from State Board laboratory.
9. And whereas industry has failed to submit requisite details/documents along with consent application. In view of above, this show cause notice is being issued as to why the consent to operate (renewal) application referred above be not refused for the reasons stated herein above. In case you wish to submit any clarification/ objections to above notice, please arrange to submit your clarification along with the supporting documents/evidence by 31.08.2021 to this office as well as R.O. Bhiwadi failing which the consent to operate (renewal) application shall be refused without further notice."
252. Appellant claims to reply letter dated 16.08.2021 vide letter dated 28.08.2021 but therein we find that only ground for non-application of EC requirement is that the unit was established prior to 14.09.2006 i.e., before issue of EIA 2006 and, therefore, the same is not applicable. If we read EIA 2006, it shows that it is applicable to all existing units, therefore, 146 basic premise to escape from clutches of requirement of EC is also based on fallacious contentions.
253. Last document relied by appellant is letter dated 13.04.2022 addressed to Member Secretary, RSPCB. It shows that it was reiteration of an earlier decision. On request of RSPCB, matter was re-examined by MoEF&CC but it found no reason to take a different view. The contents of letter dated 13.04.2022 are reproduced as under:
"Reference is invited to your letter dated 9th March, 2022 on the subject cited above wherein this Ministry was requested to clarify the applicability of EC in the matter of reheating furnaces/units engaged in rolling operations for manufacturing of TMT Bars, Angles, Section Rolling Items etc., as the CTE/CTO for such units are pending with the RSPCB.
2. It is to inform that as per extant provisions of the Environment impact Assessment (EIA) Notification, 2006, re- rolling mills [Either Hot Rolling (or) Cold Rolling] falls under secondary metallurgical industry and are to be appraised for Environment Clearance as Category 'B' projects under schedule 3(a) Metallurgical Industries, Further, the Hon'ble NGT in Original Application no. 55 of 2019 (WZ) vide its Order dated 12/02/2020 held that the MoEF upon consideration of the expert opinion appears to have now clarified that Cold Rolled Stainless Steel manufacturing industries do require prior environmental clearance but, having regard to the fact that there were a large number of such mills operating on the strength of CTE and CTO, opportunity should be provide to such units to fall within the EC regime by granting a period of at least one year to operate for the purpose.
3. The aforesaid matter has been examined in this Ministry. It is pertinent to mention here that reheating furnaces are used in Hot Rolling Mill wherein the size, shape and metallurgical properties of steel are changed by repeatedly compressing the hot metal between electrically powered rollers.
4. Considering the above, the undersigned is hereby directed to inform you that re-rolling [Hot rolling (or) Cold rolling] is one of the processes in the secondary metallurgical industry and attracts the provisions of the Environment Impact Assessment (EIA) Notification, 2006."
254. Hence, there was no substantive confusion or non-clarity with regard to requirement of EC by unit like appellant. We, therefore, answer issues III and IV accordingly and against appellant. 147
255. Issue V, VI and VII: These three issues can be considered together. AQM Commission passed closure order on the ground that the raid team found working of unit on closure days and, therefore, appellant unit violated the directions contained in direction no. 49. Appellant took a defense that on those days, only already manufactured product were on sale hence unit was actually non-function. This fact has not been found correct in as much as the record received form JVVNL showed that consumption of electricity in the said closure days was much more than what it was in the other days when the unit was functional. The production consumption of electricity during 6th, 7th, 13th and 14th January, 2022 (i.e. Thursday & Fridays on was 23400, 22945.5 and 21717 & 23706 Kwh respectively. When we enquired from Learned Senior Counsel Shri Hegde as to how it could be that the appellant alleged closure of unit on these dates but consumption of electricity exceeds even those days when unit was actually furcation to which he could not give no reply at all. It is true that before passing the said order of closure, a show cause notice ought to have been issued to appellant which was not issued. Therefore, there was a procedural error but this stood rectified, pursuant to Tribunal's order dated 29.03.2022 passed in Appeal I. After giving opportunity of hearing, subsequent order has been passed by AQM Commission.
256. We also gave opportunity to the appellant by placing any material to show that unit was not actually functional on the said closure days and how it justified more consumption of electricity on the said closure days comparing to the working days but on this aspect, no clarification or explanation could be provided except that the above consumption disclosed by electricity department was not disclosed to the appellant. When we questioned, whether the facts relating to quantity of electricity 148 consumed during closure days are correct or disputed by appellant, no dispute was raised at all and that being so, when the facts are not disputed, a mere hyper technological objection cannot vitiate the proceedings particularly, when matter relates to environment and that too in an area where condition of air is extremely precarious inviting indulgence of even Apex Court. Pursuant to the directions issued by Apex Court, action has been taken by Central Government which has resulted in enactment of AQM (NCR&AA) Act, 2021 Act and constitution of AQM Commission and subsequent action on the part of Commission.
257. Once a valid closure order was passed, permission to re-open unit could have been granted only when all other things are in accordance with law. When it came to the notice of AQM Commission that a mandatory condition of requirement of EC is wanting and appellant unit is working illegally in violation of provisions of EIA 2006, obviously, it could not have issued any direction permitting appellant's unit to function without EC. Direction of resumption of work could have been issued only when it would have been legally permissible under law for the appellant to resume work.
258. We, therefore, answer issues V, VI and VII against appellant.
259. Issue VIII: In the light of the issues I to VII returned above, apparently it cannot be doubted that appellant has violated environmental laws and hence AQM Commission has rightly issued closure order.
260. The question which now has to be considered whether this closure of unit should be allowed to continue since the unit is lying closed on and after 05.05.2022; or whether the facts of the case require any other order balancing interest of the industry as also the environment which is consistent with the principle of 'sustainable development' and 'precautionary principle'.
149
261. Learned Senior Counsel Shri Hegde appearing for appellant, has put in very hard labour in presenting its case before us to show that large number of people are employed in the unit, any continuous closure of unit would ultimately cause a national loss, damage the unit irreparably and that will not be in the interest of anyone. It is also said that appellant would change its heating furnace from coal to electric, within one month. With regard to change of fuel to natural gas, it is pointed out that it has already applied for the same and as soon as the gas is made available, it will change the same. An undertaking is given that Tribunal may impose any reasonable condition considering interest of the industry, large number of employed people and ultimately, national economy to which appellant's unit is contributing so that industry is protected but simultaneously principles governing environmental laws and norms are also taken due care.
262. In Rural Litigation and Entitlement Kendra & Others vs. State of U.P. & Others, AIR1985SC652, Court said that preservation of environment and keeping ecological balance unaffected is a task which not only governments but also every citizen must undertake. It is a social obligation and every citizen must remind to himself that it is his fundamental duty as enshrined under Article 51A(g) of the Constitution.
263. In the above case, issue of indiscriminate limestone quarrying causing ecological disturbance was brought to the notice of the Court. Issues involving environment and development opposing each other were sought to be canvassed. Court preferred primacy to environment through the concept of 'sustainable development' and further said that whosoever has caused harm to environment, has absolute liability, not only to compensate the victim of pollution, but also to bear cost for restoration of environmental degradation.
150
264. In Sachidananda Pandey vs. State of West Bengal & Others, AIR1987SC1109, dealing with the matter pertaining to environment, Court said that whenever a problem of ecology is brought before it, the Court is bound to bear in mind Article 48A and 51A(g) of the Constitution. When a court is called upon to give effect to the directive principles of fundamental duties, it cannot shirk its shoulders and say that priorities are a matter of policy and so it is a matter for the policy making authorities. The least court must give is, to examine whether appropriate considerations are gone in mind and irrelevancies are excluded. In appropriate cases Court could go further but how much further would depend upon the circumstances of the case. Court may always give necessary directions.
265. In M.C. Mehta vs. Union of India, AIR1987SC1086 (Sodium gas leak case), issue of gas leak in a chemical factory and its repercussions came to be considered. Court expanded the doctrine of liability by modifying 'strict liability' principle enshrined in Rylands v. Fletcher to 'absolute liability; and said, "enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and residing in the surrounding areas, poses an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken-the enterprise must be absolutely liable to compensate for such harm and it should be not answer to the enterprise to say that it has taken all reasonable care....".
266. Court also said that larger and more prosperous enterprise, greater must be the amount of compensation payable for the harm caused on account of the activity being carried on by the industry. 151
267. In M.C. Mehta vs. Union of India, AIR1988SC1037 (pollution by tanneries in Ganga River), Court said that the State is under an obligation to stop exploitation of natural resources.
268. In State of Bihar vs. Murad Ali Khan, Farukh Salauddin & Others AIR1989SC1, dealing with an appeal, concerning protection of wildlife in Kundurugutu Range Forest in Bihar, Court referred to a decree issued by Emperor Ashoka in third century BC, which said "Twenty six years after my coronation, I declared that following animals were not to be killed; parrots, mynas, the arunas, ruddy- geese, wild geese, the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses... and all quadrupleds which are not useful or edible....forests must not be burned".
269. Having referred to the above said, Court further observed that environmentalist conception of the ecological balance in nature is based on fundamental concept of nature as a series of complex biotic communities of which a man is an interdependent part. It should not be given to a part to trespass and diminish the whole. Larger single factor in depletion of wealth of animal life in nature has been civilized man operating directly through excessive commercial hunting or, more disastrously, or indirectly through invading or destroying natural habitats.
270. In Vellore Citizens Welfare Forum vs Union Of India & Others (1996)5SCC647, Court held "In view of the Constitutional and Statutory Provisions---, "Precautionary" Principle and "Polluter Pays" Principle are part of the Environmental Laws of our country."
271. Explaining "Precautionary" principle, Court said that it includes (i) environmental issues - by the State Government and statutory bodies - must anticipate, prevent and attempt causes of environmental degradation 152
(ii) where there are threats of serious and irreversible damage, lack of full scientific certainty should not be used as a reason for proposing cost effective measures to prevent environmental degradation (iii) the 'onus of proofs' is on the actor or the developer/industrialist to show that the action is environmentally benign.
272. "Polluter Pays" principle was interpreted stating that absolute liability for harm to environment extends not only to compensate victim of pollution but also the cost of restoring environmental degradation. Environmental protection and prevention of pollution is primarily function of executive but unfortunately, they have failed.
273. In Tarun Bharat Sangh, Alwar vs. Union of India, AIR1992SC514, issue of mines licenses granted in Rajasthan for mining limestone or dolomite stone in Sariska Tiger Park was considered. Court issued various directions for protection of the area. It also observed that a litigation relating to environment initiated by a common person, individually or collectively, should not be treated as usual adversarial litigation. The person(s) is concerned for environment, ecology and wildlife and it should be shared by government also.
274. In Virendra Gaur vs. State of Haryana, (1995)2SCC577, Court said the word 'environment' is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance". It is duty of State and every individual to maintain hygienic environment. State in particular has duty to shed its extravagant unguided sovereign power and to forge in its policy to maintain ecological balance in hygienic environment. Court further said:
"Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life 153 cannot be enjoyed, any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water pollution etc. should be regarded as amounting to violation of Article
21."
275. Court also held that hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a human and healthy environment. Court further said "Therefore, there is a constitutional imperative on the State Government and the Municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the manmade and the natural environment."
276. In Indian Council for Enviro-Legal Action vs. Union of India, (1996)3SCC212, Court said that once activity carried on is hazardous or inherently dangerous, a person carrying on such activity is liable to make good, the loss, caused to any other person, by his activity, irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on. It was held that polluting industries are absolutely liable to compensate for the harm caused by them to the people in the affected area, to the soil and to the underground water.
277. "Polluter Pays" Principles means absolute liability for harm to the environment, not only to compensate victims of pollution but also cost of restoring environmental degradation. Remediation of damaged environment is part of the process of 'sustainable development'. As such, polluter is liable to pay cost to the individual sufferers as well as cost of reversing the damaged ecology.
278. With respect to polluter pays principle, Court in Indian Council for Enviro-Legal Action vs. Union of India (supra), in para 65, said that any principle evolved in this behalf should be simple, practical and suit to the conditions obtaining in the country.
154
279. In Indian Council for Enviro-Legal Action (supra), issue of damage to mother earth by industries producing toxic chemicals was brought to the notice of the Court. It was found that water in wells and streams turned dark and dirty rendering it unfit for human consumption or even for cattle and for irrigation. Court issued various directions which included closure of industries.
280. Again issue of pollution from tanneries in rivers including river Ganga was considered by Supreme Court in Vellore Citizens' Welfare Forum (supra). Recognizing principle of 'sustainable development', Court held that it is a balancing concept between ecology and development and remediation of damage to the environment is part of the process of sustainable development; precautionary principle, polluter pays principle and new burden of proof have become part of environmental law of the country.
281. In M.C. Mehta vs. Union of India, (1997)3SCC715 (Badkal and Surajkund lakes matter), Court considered the issue of preservation of tourist spots near Delhi at Badkal and Surajkund lakes. Applying principle of 'sustainable development' and 'precautionary principle', Court banned construction activities within the radius of 1 km from the lakes. Court relied on the reports of experts from National Environmental Engineering Research Institute (NEERI) and CPCB stating that it is not advisable to permit large scale construction activities in close vicinity of lakes which would have an adverse impact on local ecology. It could affect water level under the ground and also disturb hydrology of the area.
282. In T.N. Godavarman Thirumulpad vs. Union of India & Others, (2006)1SCC1, (order dated 23.09.2005), Court said, "The damage to environment is a damage to the country's assets as a whole. Ecology knows no boundaries. It can have impact 155 on the climate. The principles and parameters for valuation of the damage have to be evolved also keeping in view the likely impact of activities on future generation."
283. In M.C. Mehta vs. Union of India & Others, (2004)12SCC118 (Mining activities on Delhi, Haryana Border and in Aravalli Hills Matter), Supreme Court while distinguishing its earlier judgment in Deepak Nitrite Ltd. vs. State of Gujarat, (2004)6SCC402 said, "In India the liability to pay compensation to affected persons is strict and absolute and the rule laid down in Rylands vs. Fletcher, (1868) 3HL 330: (1861-73) ALL ER Rep 1, 626: 19 LT 220, has been held to be not applicable."
284. Court said that environmental concerns are at the same pedestal as human rights, both being traced to Article 21 of the Constitution. The right to information and community participation for protection of environment and human health are also rights which flow from Article 21. Consequently, Court directed to destroy 133 containers having hazardous substance, as recommended by Monitoring Committee.
285. In Intellectuals Forum, Tirupathi vs. State of A.P. & Others, (2006)3SCC549, a complaint was raised, in writ petitions filed before Andhra Pradesh High Court, that there is a systematic destruction of percolation, irrigation and drinking water tanks in Tirupathi town, alienation of Avilala tank bed land to Tirupathi Urban Development Authority and AP Housing board for housing purposes. The writ petitions were dismissed on the ground that the activities were in public interest in view of growing population in the town and need of housing accommodation for the people. In appeal, Supreme Court formulated following four questions of law:
"1. Whether the Urban Development could be given primacy over and above the need to protect the environment and valuable fresh water resources?156
2. Whether the action of the A.P. state in issuing the impugned G.Os could be permitted in derogation of Articles 14 and 21 of the Constitution of India as also the Directive Principles of State Policy and fundamental duties enshrined in the Constitution of India?
3. Whether the need for sustainable development can be ignored, do away with and cause harm to the environment in the name of urban development?
4. Whether there are any competing public interests and if so how the conflict is to be adjudicated/reconciled?"
286. Referring to the responsibly of State to protect environment and the principle of sustainable development, Court said, "merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation."
287. Considering the facts that ground realities are different, huge amount has been spent and natural resource lost is irreparable and beyond the power of Court to rectify, best way was to accept findings of the Committee which suggested some rectification but with change in quantum of the area. Report was accepted by the authorities. Thus Court decided matter on the peculiar facts of the case but issued separate orders in respect to two tanks namely, Peruru tank and Avilala tank, restraining any further construction in the area and to take other steps for avoiding/preventing any loss/damage to the said tanks.
288. In Research Foundation for Science Technology and Natural Resource Policy vs. Union of India & Others, 2007(15)SCC193 (order dated 11.09.2007 in IA 34 of 2006 In WP (C) No. 657 of 1995), Court said that when apply principle of 'sustainable development', one has to keep in mind concept of development on one hand and concepts like generation of revenue, employment and public interest on the other hand and here the principle of proportionality comes in. 157
289. In Fomento Resorts & Hotels & Another vs. Minguel Martins & Others, (2009)3SCC571 (order dated 20.01.2009) in (Civil Appeal No. 4154 of 2000), Court refers to public trust doctrine and said that there is an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof. In para 54 of judgment, Court said, "The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. "
290. Elaborating it, in para 55, Court said, "Public Trust Doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today, every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long term interest in that property or resource, including down-slope lands, waters and resources".
291. Referring to ancient Indian heritage and culture which was in harmony with nature, Court said:
"The Indian society has, since time immemorial, been conscious of the necessity of protecting environment and ecology. The main moto of social life has been "to live in harmony with nature". Sages and Saints of India lived in forests. Their preachings contained in Vedas, Upanishadas, Smritis etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. It was regarded as a sacred duty of every one to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were 158 educated by their parents and grandparents about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora fauna and every species of life."
292. Court reiterated that natural resources including forest, water bodies, rivers, seashore etc. are held by State as a trustee on behalf of people and specially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. State cannot transfer public trust properties to a private party. If such a transfer interferes with the right of the public, Court can invoke public trust doctrine and take affirmative action for protecting right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural eco-systems. The questions, were answered observing that access road cannot be obstructed. Court also upheld the view taken by High Court that extension of hotel building was illegal and, therefore, it has to be demolished.
293. In Tirupur Dyeing Factory Owners Association vs. Noyyal River Ayacutdars Protection Association & Others, (2009)9SCC737, Court said, "in spite of stringent conditions, degradation of environment continues and reaches a stage of no return, the court may consider the closure of industrial activities in areas where there is such a risk. The authorities also have to take into consideration the macro effect of wide scale land and environmental degradation caused by absence of remedial measures. The right to information and community participation for protection of environment and human health is also a right which flows from Article 21."
294. In T.N. Godavarman Thirumulpad (104) vs. Union of India & Others, (2008)2SCC222, (order dated 23.11.2007) in (IAs No. 1324, 1474 and 2081-82 in WP(C) No. 202/1995), an application was filed on behalf of M/s. Vedanta Alumina Ltd. seeking clearance for use of 723.343 ha of land including 58.943 ha of reserve forest land in Lanjigarh Tehsil of Kalahandi District for setting up alumina refinery. Court proposed certain 159 conditions which if agreeable, it would consider grant of clearance but in the context of principle of sustainable development vis-a-vis mining activities, Court said, "while applying principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of future generations to meet their own needs is sustainable development--it is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity." Court further said that "mining is an important revenue-generating industry" but Court cannot allow country's national assets to be placed into the hands of companies without a proper mechanism in place and without ascertaining credibility of the user agency.
295. In News Item Published in Hindustan Times Titled "And Quiet Flows The Maily Yamuna", In Re, (2009)17SCC708 (order dated 12.04.2005), Supreme Court continued to consider the issue of pollution of river Yamuna, deprecated authorities for their inaction/negligence and said, "It is for the Government to implement the laws. It is no answer to say that the master plan, building bye-laws and other laws were observed in breach and the authorities were silent spectators. It seems that there was connivance of officers/officials concerned without which it is quite difficult for such large-scale unauthorized acts to take place."
296. In para 13 of the order, Court referred to its earlier order dated 10.04.2001 wherein it has said:
"...right to life guaranteed under Article 21 of the Constitution would surely include the right to clean water, which is being deprived to millions of citizens of Delhi because of large-scale pollution of River Yamuna."
297. Court recorded its concern in para 16 of the order, and said: 160
"This is a most unsatisfactory way of tackling the problem which, admittedly as per the Government's perception too, is alarming and emergent. How seriously the measures have been taken is evident from the fact that despite the orders of this Court, there is no assistance or affidavit from the National Rover Conservation Authority. It seems evident that the Government and its functionaries and authorities have failed in their public duty and obligations towards the citizens of Delhi. Despite all these years, they have not been able to provide clean water of Class 'C' category which had been directed years back."
298. In Rajendra Shankar Shukla & others vs. State of Chhattisgarh & others, (2015)10SCC400, (order dated 29.07.2015 in Civil Appeal No. 5769-70/2015 with Nos. 5771-75/2015), certain land owners whose land was acquired for Town Development Scheme, namely, Kamal Vihar Township Development Scheme No. 4, challenged acquisition of land on various grounds including violation of requirement of EC under EIA 2006. Having lost before Single Judge and Division Bench in High Court, land owners came to Supreme Court. The question relating to EC under EIA 2006 was considered as issue no. (vi) in para 116-126. Court held that since land in question was in 'critically polluted area', the category of the project from 'B1' would be treated as category 'A' and Competent Authority to grant EC was MoEF&CC not SEIAA. Hence, EC granted by SEIAA was illegal. Court, however, held, if there is any deviation in land use from proposal as disclosed in the application, a fresh EC would have to be sought by the proponent. In the case, there was a change in land use but not such fresh EC was sought. In the circumstances, Scheme could not have allowed to proceed illegally. In para 126, Court said, "therefore, we are of the opinion that due to the change in the scope of the project, Respondent No. 2 RDA was required to seek sanction for the project from the Central Government. The same has not been done....failed to obtain the environmental clearance requirement which is the mandatory requirement in law for initiating any project by 161 the RDA...town development scheme prepared through incompetent authorities with blatant violation of legal and environmental procedure cannot be the reason for deprivation of constitutional rights of the appellants". Court thus held that acquisition of land will not be valid for an illegal project.
299. In M.C. Mehta vs. Union of India (2017)7SCC243 (Vehicular Air Pollution Matter), Supreme Court did not appreciate approach of automobile industry giving primary importance to commercial profit instead of taking proactive steps to reduce vehicular pollution. It is said, "when the health of millions of our countrymen is involved, notification relating to commercial activities ought not to be interpreted in a literal manner".
300. The effect of violation of the provisions relating to EC was considered in Goel Ganga Developers India Private Limited vs. Union of India, (2018)18SCC257 wherein judgment dated 27.09.2016 passed by NGT in Tanaji Balasaheb Gambhire vs. Union of India, 2016 SCC Online NGT 4213 was challenged. Tribunal held that the builder/proponent has violated conditions of EC and therefore, liable to pay environmental compensation of Rs. 100 Crores or 5% of the total cost of project, whichever is less for restoration and restitution of environment damage and degradation. In addition, it shall also pay Rs. 5 Crores for contravening mandatory provisions of environmental laws. Tribunal also imposed fine of Rs. 5 Lakhs upon Pune Municipal Corporation and cost of Rs. 1 lakh each upon the said Corporation, Department of Environment, State of Maharashtra and SEIAA, Maharashtra. Two appeals were filed, one by the proponent and another by Pune Municipal Corporation. The factual background is that the Proponent purchased 79,900 m2 or 7.91 hectares of land comprised in six survey nos. 35, 36, 37, 38, 39 and 40 in Vad 162 Gaon, Pune. All these survey numbers were amalgamated to become one plot. Proponent applied for sanction of layout and building proposal plan on 12.03.2017 on an area of 15141.70 m2, originally depicted as plot no.
3. Sanctioned FSI was 515313.16 m2. Thereafter, on 05.09.2007, revised layout plan was submitted for an area measuring 28233.23 m2 and sanctioned FSI was 39526.54 m2. Proponent also applied for EC vide proposal dated 27.06.2007. He assured that he would be erecting/constructing 12 buildings having 552 flats, 50 shops and 34 offices. 12 buildings were to have stilts with basements and 11 floors. Total built up area was indicated as 57658.42 m2. EC was granted on 04.04.2008. Defining as to what is the meaning of the term "built up area", Court after referring to EIA 2006, said in para 16 as under:
"16. From a bare perusal of the two hash tags (#) in Column 4 and 5 of Item 8(a), it is apparent that what is shown under Column 5 is actually a continuation of Column 4 and basically it describes or defines "built up area" to mean covered construction and if the facilities are open to the sky, it will be taken to be the activity area. This by itself clearly shows that under the notification of 2006, all constructed area, which is covered and not open to the sky has to be treated as "built up area". There is no exception for non-FSI area."
301. It also said that the concept of FSI or non-FSI has no consonance or connection with the grant of EC. The same may be relevant for the purpose of Building Plans under Municipal Laws and Regulations but has no linkage or connectivity with the grant of EC. The authority while granting EC is not concerned whether area is to be constructed as FSI area or non- FSI area. Both will have an equally deleterious impact on environment. Construction implies usage of lot of material like sand, gravel, steel, glass, marble etc., all of which will impact environment. Merely because under Municipal Laws some of the constructions are excluded while calculating FSI, is no ground to exclude it while granting EC. Therefore, when EC is granted for a particular construction, it includes both FSI and non-FSI area. Considering correctness of Notification dated 04.04.2011 and 163 clarification dated 07.07.2017, Court said that such memorandums could not or should not have been issued. EIA, 2006 is a statutory Notification and such Notifications cannot be set at naught by a Joint Director by issuing any clarificatory letter. In para 22, Court said, "we are of the view that since such decision has not been notified in the gazette the statutory notification dated 14-9-2006 and its subsequent clarification dated 4-4- 2011 could not have been virtually set aside by this office memorandum". It was also held that OM dated 07.07.2017 is not clarificatory since EIA 2006 itself was very clear and considering question, whether Proponent has violated conditions of EC, Court found that construction raised was much more than what was approved and permitted in EC. Against the total built up area sanctioned in EC i.e. 57658.42 m2, proponent has constructed 100002.25 m2 which was patently illegal. Then, Court considered as to what order could have been or ought to have been passed. Considering the probability including justification for demolition, Court found that large number of flats and shops are already occupied by innocent people who have paid money. These people are from middle class having invested from their life's earning in the project. Since these persons are not parties, Supreme Court took the view that the demolition is not proper answer in the peculiar facts and circumstances of the case as that would put innocent people at loss. However, Court added in para 54 by observing that PP cannot be permitted to build any more flats than what was permitted but only to complete construction of 807 flats and 117 shops/offices and cultural center including the club house. Court stopped from constructing two buildings and directed to refund the money with 9% interest. In this regard, Court said in para 54, "There is no equity in favour of these persons since the plan to raise this construction was submitted only after 2014 when the validity of the earlier EC had already ended. Therefore, though we uphold the order of the NGT dated 27-9-2016 that demolition is 164 not the answer in the peculiar facts of the case, we also make it clear that the project proponent cannot be permitted to build nothing more than 807 flats, 117 shops/offices, cultural centre and club house".
302. Court did not find any ground to award special damages to original applicant/complainant looking into his conduct. For the assessment of damages, Court observed that it cannot introduce a new concept of assessing and levying damages unless expert evidence in this behalf is led or there are some well-established principles. No such principles have been accepted or established in that case. No assessment in actual terms can be made, though Court can impose damage or cost on principles which have been well-settled by law. Referring to some earlier matters, where Court awarded damages as 5% of the project cost and also looking to the fact that the case in hand was where severe violations were found and project proponent was in transient and unapologetic behavior, it imposes damages of Rs. 100 Crores or 10% of project cost whichever is more besides, Rs. 5 Crores as damages in addition to above for contravening mandatory provisions for environmental laws. In this regard, the observations of the Court are as under:
"64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has maneuvered and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone upto 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons, residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs.100 crores or 10% of the project cost whichever is more. We also make it clear that while calculating the project cost the entire cost of the land based on the circle rate of the area in the year 2014 shall be added. The 165 cost of construction shall be calculated on the basis of the schedule of rates approved by the Public Works Department (PWD) of the State of Maharashtra for the year 2014. In case the PWD of Maharashtra has not approved any such rates then the Central Public Works Department rates for similar construction shall be applicable. We have fixed the base year as 2014 since the original EC expired in 2014 and most of the illegal construction took place after 2014. In addition thereto, if the project proponent has taken advantage of Transfer of Development Rights (for short "TDR") with reference to this project or is entitled to any TDR, the benefit of the same shall be forfeited and if he has already taken the benefit then the same shall either be recovered from him or be adjusted against its future projects. The project proponent shall also pay a sum of Rs. 5 crores as damages, in addition to the above for contravening mandatory provisions of environmental laws."
303. In Hanuman Laxman Aroskar vs. UoI & Others (2019)1SCC401, Court held that the provisions on requirement of EIA 2006 is mandatory.
304. In Himachal Pradesh Bus-Stand Management and Development Authority (HPBSM&DA) vs. The Central Empowered Committee Etc. & Others (2021)4SSC309, Court considered in detail Environmental Rule of Law in para 48 and 49 of the Judgment as under:
"48. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations. A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focussing on the structural norms which guide institutional decision making, rule of law frameworks recognise the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed. A modern rule of law framework is hence comprehensive in its sweep and ambit. It recognises that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional 166 safeguards that are designed to ensure responsive, accountable and sensitive governance.
49. The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools
- conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges - of how they have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity's actions have charted. The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognises that the 'law' element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognises the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance - of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The tools of analysis go beyond 167 legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today."
305. In Association for Protection of Democratic Rights and Another vs. State of West Bengal and others (2021)5SSC466, Court considered as to how compensation should be determined when it is found necessary to cut a tree. Court said that it is imperative to make a realistic assessment of the economic value of a tree, which may be permitted to fell, with reference to its value to environment and its longevity, with regard to factors such as production of oxygen and carbon sequestration, soil conservation, protection of flora/fauna, its role in habitat and ecosystem integrity and any other ecologically relevant factor, distinct from timber/wood.
306. Court also took notice of the fact that the issue has assumed significance from the perspective of climate change, as a growing national and international concern. The pivotal policy document in India on climate change is 'National Action Plan on Climate Change' (NAPCC) formulated by Union Government in 2008, which recognizes that the Country is committed to increasing tree cover from 23% to 33%. Under Paris Agreement, India has committed itself to Nationally Determined Contributions in 2015, wherein one of the stated objectives is to create an additional carbon sink of 2.5 to 3 billion tonnes of CO2, equivalent through additional forest and tree cover, by 2030.
307. The question, whether EC was required for expansion of National Highway 45A between Viluppuram to Nagapattinam, was considered in National Highways Authority of India vs. Pandarinathan Govindarajulu & Another (2021)6SCC693. The project was approved by Special District Revenue Officer (Land Acquisition) in March 2018 and 168 agreements were entered into between NHAI and the concessionaires. Process for acquisition of land was initiated and at this stage Writ Petitions were filed in High Court of Madras by certain aggrieved farmers and public interest litigants questioning commencement of project without obtaining prior EC. High Court held that EC was necessary and there against appeal came to Supreme Court. Court held that a plain reading of Item 7(f) of EIA Notification as amended by Notification dated 22.08.2013, makes it clear that expansion of a National Highway project needs prior EC in case (a) expansion of the National Highway project is greater than 100 km. and (b) it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or bypasses. There is no ambiguity in the above provision as it gives no scope for any doubt. The distance of 100 km is important as expansion of National Highways below 100 km needs no prior environmental clearance. If project involves expansion of a National Highway greater than 100 km, prior environmental clearance would be required only if it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes. Court held that no EC, in the facts of the case, was needed in the above project.
308. However, Court accepted findings of High Court that segmentation as a strategy is not permissible for evading requirement of EC under EIA Notification dated 14.09.2006 and 22.08.2013. High Court said that requirement for EC says that the length of Highway is greater than 100 km. In such a case, if total length is much more, than segmentation of length so as to avoid prior EC is not permissible otherwise provisions of statute would become a dead letter and in every case such segmentation can be made to avoid compliance of law. Supreme Court showed its agreement with the above findings of the High Court and said that 169 "therefore, we are in agreement with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications dated 14.09.2006 and 22.08.2013".
309. The law discussed above makes it clear that environmental laws are mandatory and binding and cannot be allowed to be breached as that would degrade environment and cause loss to public health which may be inter-generational. In the present case, despite mandatory provisions of requirement of EC, appellant did not make any serious, sincere and bona- fide effort or attempt to obtain EC from Competent Authority. It is only at late stage when closure orders were passed by AQM Commission, application for EC has been submitted.
310. Unfortunately, role of RSPCB in this case, is also dubious. Though things were made clear long back, RSPCB also knew that appellant's unit had to obtain EC, no effective action was taken on its part except of simply issuing some letters. No strict action was taken though it had enough powers under the Statute. We have no hesitation in observing that RSPCB has miserably failed as a Statutory Regulator to take such steps as and when necessary for implementation of environmental laws. It has also suggested that unit is not causing any actual air pollution but for this purpose rely on a test held/conducted in the inspection made in 2019. This inspection is quite old and cannot be a basis to take a stand that no actual air pollution is caused in 2022.
311. In the entirety of the facts and circumstances and also considering the project cost, turn over etc. of appellant's unit and other relevant facts, we find it appropriate to direct Competent Authority under EIA 2006 to 170 take a final decision on the application for EC submitted by appellant within 3 months.
312. In the meantime, RSPCB shall allow appellant to resume its functioning initially for a period of one week and after testing the air quality of the running unit if no emission beyond permissible limit is found and other environmental norms are also complied, unit may be allowed to continue but under strict monitoring and supervision by RSPCB. However, since on and after 11.02.2021 when direction of Tribunal granting indulgence with regard to prior EC to be obtained by the units like appellant's, expired, yet appellant's unit continued to function, we find it appropriate to impose environmental compensation of Rs. 5 lakh/month for the period of violation i.e., for the period unit has run, on and after 11.02.2021 till date. If appellant decides to resume its production as permitted above, the same amount of compensation shall also be paid for the period unit continued to run without EC.
313. We also constitute a joint Committee comprising RSPCB and District Magistrate, Alwar who shall monitor the functioning of the unit as a whole and ensure compliance of environmental norms and laws by the unit, if it resumes function as permitted above.
314. The amount of compensation directed above, shall be deposited with RSPCB within 2 months and same shall be utilized for resumption/restoration/rejuvenation of environment in the concerned area, on the recommendation of the joint Committee constituted above.
315. With above directions, both Appeals as well as pending IAs are disposed of accordingly.
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316. A copy of this order shall be forwarded to RSPCB and District Magistrate, Alwar by e-mail for information, necessary action and compliance.
SUDHIR AGARWAL JUDICIAL MEMBER ARUN KUMAR TYAGI JUDICIAL MEMBER PROF. A. SENTHIL VEL EXPERT MEMBER August 04, 2022 Appeal No. 28/2022 and Appeal No. 29/2022 R 172