National Green Tribunal
Ramesh Malik vs Union Of India Through Secretary ... on 19 May, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 03 & 04 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Execution Application No. 09/2021
(with I.A. Nos. 75/2022, 82/2022 & 83/2022)
In
Original Application No. 78/2021
Ramesh Malik & Anr. Applicant(s)
Versus
Union of India & Ors. Respondent(s)
With
Appeal No.15/2022
(I.A. No. 84/2022 & I.A. No. 85/2022)
M/s Amar Nath Aggarwal Investment Private Limited Applicant
Versus
State Environment Impact Assessment Authority & Ors. Respondent(s)
Date of hearing: 19.05.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Ramesh Malik, Applicant in Person in E.A 09/2021
Respondent(s): Mr. Anil Grover, Senior AAG with Mr. Rahul Khurana, Advocate
for SEIAA, Haryana
Mr. Nidhesh Gupta, Senior Advocate with Ms. Anubha Agrawal,
Advocate for M/s Amar Nath Aggarwal Investment Pvt. Ltd.
ORDER
Execution Application No. 09/2021 - Issue in OA
1. This application seeks execution of order of this Tribunal dated 25.03.2021 in O.A. No. 78/2021, Ramesh Malik & Anr. v. Union of India & Ors. directing a joint Committee of the SEIAA, Haryana and the Chief 1 Wildlife Warden, Haryana to look into the matter and take such action as it is found necessary. The issue raised in the OA is alleged illegality of EC dated 5.1.2021 in favour of M/s Amarnath Aggarwal Investment (P) Ltd.
for a housing project within prohibited distance from two wildlife sanctuaries - Bir Shikargarh and Kho Hai Raitam in Panchkula District.
2. According to the applicant, the joint Committee has failed to look into the matter and take any action.
3. On 15.06.2021, the Tribunal directed the SEIAA, Haryana and the Chief Wildlife Warden, Haryana to file a status report in the matter.
4. The matter was last considered on 06.01.2022. Considering the contention that the project being be within 10 Kms. from the wildlife sanctuaries, EC granted by SEIAA was invalid in view of 'General condition' appended to the EIA notification and also for want of wildlife clearance, the Tribunal issued notice to the PP and required SEIAA, Haryana to file a further report. Operative part of the order is reproduced below:-
"1to4...xxx..............................xxx.........................................xxx
5. SEIAA, Haryana has filed status report dated 24.11.2021 merely seeking time for constitution of a fresh Committee.
6. We have considered the matter. We find no justification for the stand of SEIAA. If it has granted EC, it cannot plead lack of clarity in the matter. Grant of EC and lack of clarity are contradiction in terms. If it is not clear whether EC could be granted, we fail to understand how it is allowed to continue. In environmental issues, doubt about legality cannot be ground to permit a project.
7. Learned Counsel for the applicant points out that according to letter of Deputy Chief Wildlife Warden, Panchkula, addressed to Chief Conservator of Forest (Wildlife), Panchkula, dated 26.05.2021, which is on record shows following details of the project:-
" Sr. Name of Name of Distance from Distance from ESZ No. project nearby WLS of WLS projected area 2 1 Amravati Bir Shikargah 4010 meter 3780 meter enclave WLS (30045'33".16N) Project site situated (76054'29".18E) outside of ESZ area as per notification of 23.11.2016.
2 -do- Khol hai raitan 880 meter 700 meter WLS (30044'41".52N) Project site situated (76054'39".64E) outside of ESZ area as per notification of 24.10.2016.
3 -do- Sukhna WLS 1620 meter Proposal of ESZ
(towards Haryana
(30045'23".63N) side) under
(76054'18".40E) consideration,
however, Hon'ble
Punjab and Haryana
High Court, Chd. has
directed for a
minimum ESZ of 1
KM from boundary of
Sukhna WLS.
Keeping in mind this
fact the project side
is out of proposed
(High Court
direction) ESZ,
however, it falls
under 10KM from
boundary of Sukhna
WLS.
"
8. From the above, it is clear that the project is prima facie within 10 km from the wildlife sanctuaries in question and grant of EC by SEIAA, Haryana is prima facie illegal.
9. Accordingly, we direct issuance of notice to the project proponent, M/s. Amarnath Aggarwal Investments (P) Limited, which may be served by the applicant with a copy of the paper book and an affidavit of service filed within one week. SEIAA, Haryana may file further affidavit in response to the above observations and also file a copy of the relevant Notification of ESZ and other documents."
Report of SEIAA partly supporting Applicant's case
5. In pursuance of above, SEIAA Haryana has filed its report on 05.04.2022 to the effect that EC was found to have been illegally granted and the same was withdrawn. Its finding is that though 'General condition' was not applicable, EC was vitiated by absence of Wildlife clearance. The 3 PP has not complied with EC conditions. Relevant extracts from the report are as follows:-
"
7. That keeping in view of the spirit of the orders dated 25.03 021 and 06.01.2022 of the Hon'ble NGT, Show-cause Notice, dated 18.01.2022, was issued to the project proponent to explain "Why EC dated 25.03.2010 & subsequent extension dated 05.01.2021 granted to the project proponent in the present case should not be withdrawn?"
8. That in response to the notice, firstly, time was sought by the project proponent to represent his case. Meanwhile, a committee was also constituted, vide order dated 20.01.2022, consisting of the following for carrying out a site inspection report of the project.
1. Shri Vinay Gautam, Joint Director (Tech), SEL4A
2. Shri Satinder Pal Banger, SEE, HSPCB
3. Shri Virender Singh Punia, Regional Officer, HSPCB, Panchkula
4. Shri Sudhir Mohan, AEE, RO, HSPCB
5. Shri Bhupinder Raghav, DFO Morni.
Copy of Order dated 20.01.2022 is hereby annexed as Annexure R/1 That the sub-committee, vide its report vide letter dated 10.03.2022, observed the following violations:
Part-A: Specific Conditions Sr. Conditions Compliance No. viii. Ambient noise levels shall confirm Not complied with.
to the residential and commercial Tests reports are standards both during day and not submitted by night. Incremental pollution loads the Project on the ambient air and noise quality Proponent.
should be closely monitored during construction phase. Adequate measures should be taken to reduce ambient air pollution and noise level during construction phase, so as to confirm to the stipulated residential standards.
xviii The project proponent will Not complied with.
construct rain water harvesting
pits @ 1 pit per acre for recharging Rainwater
the ground water within the project harvesting pits as
premises drawings approved
by HUDA provided.
They are also
cleaned regularly;
informed by the
project proponent.
4
Only 7 RWH
provided in place of
9 RWH
Operational Phase
6 Ambient noise level should be Not complied.
controlled to ensure that it does not Not submitted
exceed the prescribed standards noise monitoring
both within and at the boundary of report
the proposed Township project.
9 The project proponent shall setup Not complied with
rain water harvesting pits @ 1 Out of total 9 RWH
pit/area having 400 mm bore and pits, 07 rainwater
200 mm slotted pipe as proposed harvesting pits
for roof run off and surface run-off, have been provided as per plan submitted should be These are implemented. Before recharging regularly cleaned the surface run off, pretreatment a desired as stated must be done to remove suspended by PP.
matter, oil and grease. The bore well for rainwater recharging should be kept at least 5 mts, above the highest ground water table Part-B: General Conditions Sr. Conditions Compliance No. 2 Six monthly compliance reports Not complied should be submitted to the HSPCB with.
and Regional Office, MOEF, GOI, Not submitted Northern Region, Chandigarh and a six mont hly copy to the SEIAA Haryana. complian ce reports to SEIAA regul arl y.
4 All other statutory clearances Not complied with.
such as the approvals for storage of diesel from chief Controller of PP has not Explosives, Fire Department, Civil submitted NOC Aviation Department, Forest from NWLB for ESZ Conservation Act, 1980 and for Sukhna Lake Wildlife (Protection) Act, 1972, Forest Act, 1927, PLPA 1900, etc. shall be obtained, as applicable by project proponents from the respective authorities prior to construction of the project Copy of report dated 10.03.2022 is annexed hereby as Annexure R/2.
10. That meanwhile, the project proponent pleaded for granting some more time to present his case. Project proponent was afforded another opportunity for presenting his case vide 5 office order no. SEIAA/HR/2022/217-221 to appear on 24.03.2022. The matter was heard on 24.03.2022 & 31.03.2022, written submissions were taken on the record.
11. That, after careful consideration of report submitted by committee and the submissions made by the Project Proponent in the present case, order for withdrawal of Environmental Clearance and subsequent extension thereon was issued by State Environment Impact Assessment Authority, vide order dated 01.04.2022. Relevant portion of order is reproduced here for kind perusal of the Hon'ble Tribunal:-
"In view of the discussion made above, before embarking upon the details findings, it is appropriate to mention summary of the conclusion in the tabular form:
Sr. Issues Findings
No.
1 Grant of EC to M/s SEIAA acted well within its
Amar Nath Aggarwal jurisdiction to entertain the issue of
Investments Pvt. grant of Environment Clearance in
Ltd. dated this case.
25.03.2010. No irregularity observed. 2 Whether project Yes, falls within 10 km Project falls within 10 km from distance from Wildlife Sanctuary, Sukhna (as per Wildlife Sanctuary the report dated 10.03.2022) Sukhna Annexure-A. Activities without permission/ clearance amounts to clear cut violation.
3 Whether Project Yes, Proponent is liable Project Proponent is liable for action for actions on for the violations i.e. account of o Penalty violations o Environmental Damage Assessment o Compensation (as per SoPs dated 07.07.2021 issued by MOEF & CC, GOI) 4 Whether prosecution Yes action is due to As project remained without EC for initiated almost 3 years i.e. from 24.03.2017 upon expiry of the EC to 05.01.2021 and further failing to comply with the general conditions as stipulated in the original EC dated 25.03.2010.
5 Construction made In this regard, Project Proponent without valid has not given clear position except clearance and "that the township in question is permission by the PP sector -2 is Pinjore, Kalka Urban after the expiry of EC Complex and is approved as per on 24.03.2017 Master Plan by Haryana Shahri 6 Vikas Pradhikaran and denied any violation thereof".
Regarding construction carried out during the period of absence of EC i.e. 24.03.2017 to 05.01.2021, PP has failed to explain and produce any cogent evidence.
Rather PP seems to have opted to remain silent about the construction of EWS flats and Booth opposite to cosmos and two wings of cineraria block on the green belt and revised building plan dated 30.01.2018.
This act of the PP needs to be equated, as construction carried out without clearance i.e. EC in terms of EIA Notification.
Hence, this act amounts to clear cut violations under the EIA Notification dated 14.09.2006.
From the above, it is clear that the project has been built/constructed under violations of the conditions as stipulated in the EC dated 25.03.2010 duly granted in terms of the EIA Notification dated 14.09.2006 and other instructions issued from MOEF & CG GOI from time to time.
Therefore, in view of the violations committed by the project proponent as observed in the preceding Paras' and powers delegated specifically by MoEF& CC vide Notification No S.O. 637 (E) dated 28.02.2014 to the SEIAA for keeping environment Clearance in abeyance for violation of the EC conditions or withdrawing the respective EC, Authority hereby consider that the present case is fit to withdraw the Environmental Clearance issued vide letter dated 25.03.2010 and subsequent, Extension granted thereto vide letter dated 05.01.2021 issued to the M/s Amarnath Aggarwal Investment P Ltd for construction project namely Amravati Enclave-NH-22, shopping mall + 1080 flats + plots at Village Bhag-wanpur, Islamnagar Chandimandir- Kalka National Highway near Panchkula.
Accordingly, EC dated 25.03.2010 granted and subsequent extension dated 05.01.2021 hereby stands withdrawn with immediate effect. Henceforth, PP shall not carry out any new activity/construction/expansion relating to the project As project proponent has rendered himself liable for action for the violations within the scope of SoPs, issued vide F.No. 22-21/2020-IA.III dated 07.07.2021 by MoEF& CC, GoI under EIA Notification dated 14.09.2006 and Environment (Protection) Act, 1986 for penalty and Environment Damage Assessment by the Experts, a Sub-Committee is hereby constituted with the directions to submit its report within 60 days by taking into account all aspects relating to violations under EIA Notification dated 14.09.2006 The Sub-Committee shall comprise of the followings:7
1. Chairman, State Expert Appraisal Committee, Haryana
2. Dr. Rajbir Singh Bondwal, IFS, Member SEAC
3. Regional Officer, HSPCB, Panchkula
4. Regional Officer, HSPCB, Ambala
5. M/s Perfect Enviro Solutions Pvt. Ltd (Environmental Consultant) The cost to prepare Environment Damage Assessment Report shall be borne by the Project Proponent.
Legal action as per the provision of Environment (Protection) Act, 1986 as may be due for the violations noted above shall be taken accordingly.
Copy of order dated 01.04.2022 is annexed hereby as Annexure R/3.
12. That keeping in view the act of passing the order dated 01.04.2022 (Annexure R-3), it is apparently clear that SEIAA has acted in compliance of directions of the Hon'ble NGT and now submitting all the facts through this report with the submission that this Hon'ble Tribunal may please take into record the present status report alongwith annexures. In addition to this, keeping in view of the directions of the Hon'ble NGT dated 06.01.2022, notifications dated 23.11.2016 & 24.10.2016, for declaration of Eco Sensitive Zone for Sir Sikargarh Wildlife Sanctuary and Khol Hai Raitan, Wildlife Sanctuary respectively are annexed hereby as Annexure R/4 & R/5 for kind perusal of the Hon'ble Tribunal."
6. Reasoned Order dated 01.04.2022 annexed to the report as Annexure R/3 relied upon OM dated 02.12.2009 and the EC condition dated 25.10.2020 for holding EC to be invalid in absence of wildlife clearance. Discussion in the said order is as follows:-
"Before proceeding further, it is appropriate to mention here that in the present matter the following important issues have been framed to arrive at the conclusion:
1. Whether, the act of granting the EC by State Environment Impact Assessment Authority (SEIAA), Haryana is in consonance with the EIA Notification dated 14.09.2006 and within it's jurisdiction?
2. Whether, general condition appended to the Schedule in reference to the change of Category from 'B' to 'A' due to the presence of project within 10 Kms from the boundary of (i) Protected Areas notified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as identified by the Central Pollution Control Board from time to time, (iii) Eco-
sensitive areas as notified under section 3 of the Environment (Protection) Act, 1986 are applicable in the present matter?
83. Whether the project involved in the present matter falls within 10 km distance from Wildlife Sanctuary, Sukhna?
4. Whether, any violation of the conditions of EC has been committed by the project proponent and thus, the case of the project proponent is liable to be treated as a violation case?
Before taking up the issues it is appropriate to mention here that issue No. 1 & 2 are interconnected and thus, both are taken up collectively.
FIRST & SECOND ISSUE:
In reference to the first issue, project proponent has made the following submissions vide his reply dated 24.03.2022 and also repeated during the oral submission:
"2. Though it is the case of the Project Proponent that prior EC is not required as the project in question does not cross the threshold prescribed under Clause 8(b) of the 2006 notification, nevertheless even then 'General Conditions' stipulated therein do not apply.
3. That General Conditions are not applicable to Clause 8(b), as has been specifically excluded by the notification itself. General Conditions have been made applicable to other clauses of the Schedule except Clause 8.
Consequently. the projects under the said category cannot be treated as Category-A' projects and Slate Environment Impact Assessment Authority is the competent authority to grant EC. Hence, there is no illegality/ infirmity in the grant of EC by SEIAA. Haryana.
4. That the above issue, regarding applicability of General Conditions to Clause 8 of the Notification was clarified by the Additional Advocate Genera before the Hon'ble Supreme Court in the case of RE: Noida Memorial Complex Near Okhla. Bird Sanctuary (2011) 1 SCC 744 wherein it has been specifically observed as follows:
"60. Mr Raval, learned ASG, produced before the Court, the draft Notification No. S.O. 1324E, published in the Gazette of India Extraordinary of 15-9-2005. In the draft notification there were two general conditions, GCI and GC2 and in regard to "(a) Construction of all projects (residential and non-residential), and (b) New Townships and Settlement Colonies", the application of GC2 was expressly indicated in Column 5 of the table. Later on, in a meeting held n 6-7- 2006, chaired by none else than the Prime Minister, it was decided to leave all construction and township projects, housing an area development projects in the hands of the State Government. It was further decided that for all projects involving more than 1,50,000 sq in of built-up area and/or covering more than 50 ha, the EM requirements should correspond to Category A, even though the clearance would be granted by the State Government. Mr. Raval submitted that in light of the decision taken in that meeting, in the final Notification issued on 14-9-2006, the application of general condition 9 was removed in respect of Items 8(a) and 8(b) in the schedule. In view of the changes made in the two items in the final notification, Mr. Rawl also contended that the general condition has no application to Items 8(a) and 8(b), regardless of the project's proximity to any sanctuary or reserved area."
5. Hence, the State Authority was fully competent to issue the EC Further, if there was any defect/ limitation in the jurisdiction of SEIAA to grant EC, at no stage did the State Authority inform' mention/ express to the project Proponent its inability/ lack of jurisdiction to grant EC. The issue of lack of jurisdiction, ?f any, should have been pointed out IT the Authority itself pursuant to which Project proponent would have taken such .further steps, as directed. The application was never returned or referred by the State Authority. Project Proponent could not be held responsible. especially in view of bonafide steps taken.' Having gone through the relevant HA Notification, 2006 and the facts and circumstances of the project involved in the matter, it has been observed that the built-up area of the project in question measuring 1.34,000 sq. mtrs and is covered under the Entry 8(a) titled as "Building and Construction Projects".
Further, perusal of the schedule appended to the EIA Notification dated 14.09.2006 reveals that against each entry from Sr. No. 1 to 8 defining the project or activity. in Column 5. where the general conditions appended to the Schedule are applicable, the expression "General Condition Shall Apply" is provided.
For instance, under entry 1 (c) for River valley projects it has specifically been mentioned under Column 5 that "General Condition Shall apply". Further, a note is appended that "Irrigation projects not involving submergence or inter state domain shall be appraised by the SEIAA as Category "B" Projects." Similarly. under Entry 1(a), 1(h), 1(d) and so on, same pattern can be observed.
However, in Entry 8(a) & 8(b), no such expression is there. From the analysis of the above, it is apparently clear that expression has been given in the entries where it is required and nothing is mentioned in the entry where it is not required and it is a settled rule of interpretation where language is clear, there is no need to fill-up the omission.
So, keeping in view of the above mentioned observations, it is considered view that issue No. 1 & 2 are in support to the action of granting the EC by SEIAA. Therefore, answered: AFFIRMATIVE, SEIAA acted well within its jurisdiction to entertain the issue of grant of EC.
THIRD ISSUE:
In this issue the project proponent submitted that no violation has been committed in reference to the location of the project as the general condition were not available on the project and the further 10 Sukhna was declared as Wild Life Sanctuary in the 1998. much later than the grant of licence and commencement of construction by the project proponent.
Further the declaration of 1998 was made by UT Administrator Chandigarh and subsequently ECO- Sensitive zone of 10.5 sq. Km was notified in 2017. No such declaration has been made by state of Haryana till date.
A draft notification for notifying Eco sensitive Zone of more than 23sq.km in Haryana is under process. The licence area of township is clearly outside side the area given in draft notification send by Haryana.
Perusal of letter by Deputy Chief Wildlife Warden, Panchkula, addressed to Chief Conservator of Forest (Wildlife), Panchkula. dated 26.05.2021 clearly reveals the factual position as given below in the tabular form :-
Sl. Name of the Name of Distance from Distance from No. project nearby WLS ESZ of WLS projected area 1 Amravati Bir 4010 meter 3780 meter Enclave Shikargarh (30045'33".16N) Project site situated WLS (76054'29".18E outside of ESZ area as per notification of 23.11.2016.
2 -do- Kholhairaitan 880 meter 700 meter WLS (30044'41".52N) Project site situated (76054'39".64E) outside of ESZ area as per notification of 24.10.2016.
3 -do- Sukhna WLS 1620 meter Proposal of ESZ
(30045'23".63N) (to wards
(76054' 18".40E) Haryan a side)
under consideration,
however, Hon'ble
Punjab and Haryana
High Court. Chd. has
directed for a
minimum ESZ of 1
KM from boundary of
Sukhna WLS. Keeping
in mind this fact the
project side is out of
proposed (High Court
direction) ESZ,
however, it falls
under 10KM from.
boundary of
SukhnaWLS
As clearly evident from the discussion made above, Eco Sensitive Zones for Bir Shikarearh WLS & Khol Hai Raitan WLS has been notified vide notification Dated 2016 & 24.10.2016 respectively and project lies well outside the Eco sensitive zone. However, proposal for notification of Eco Sensitive Zone for Sukhna WLS towards Haryana is still under consideration. Till the time Eco sensitive Zone for Sukhna Wild life Sanctuary is notified, the general condition of taking prior clearance from concerned authority prior to 11 commencement of construction is applicable if the project lies within the distance of 10km from Wild Life Sanctuary. Similar observations has been given in the letter dated 26.05.2021, as provided above.
From the above made discussion, it is established beyond reasonable doubt that by commencing the construction activity without taking requisite clearance, violation of the conditions imposed in Environment Clearance Letter Dated 25.03.2010 has been advertently committed by the Project Proponent.
FOURTH ISSUE:
The following submission has been made by the project proponent:
"1. That the 2nd inspection report by the Joint Committee of Chairman SE1AA, Haryana and Chief Wildlife Warden, Haryana dated 15.09.2021, have relied upon para 2(111) of the OM dated 02.12.2009 to conclude that prior clearance from Standing Committee of NBWL was mandatory and there is a violation of the said condition. However, it is relevant to mention that the Project Proponent acted bonafidely and the said observation is based on incorrect interpretation.
2. It is relevant to mention that OM dated 02.12.2009 was issued when the application of the Project Proponent for grant of EC was already pending before SE1AA. The said notification was never brought to the notice of the Project proponent. No specific information was obtained from the Project Proponent. as stipulated under the para 2(4 There was no specific condition stipulated in the EC that "environmental clearance is subject to obtaining prior clearance from forestry and wildlife angle including clearance from the Standing Committee of National Board for Wildlife as applicable", as per para 2(iii) of the said OM. The Project Proponent had diligently submitted its application for grant of EC. In case there was any change in Proponent by giving an opportunity to meet the additional compliances making the specific conditions in EC. Now, after 12 years of grant of EC. it cannot be said that Project Proponent faulted, without any basis. The onus was on the Authority to communicate the same to the Project Proponent burden of which cannot be shifted now.
3. That the perusal of para 2(iii) of the 2009 OM reveals that the condition of 10 km. mentioned therein is based on the order, dated 04.12.2006, passed by the Hon'ble Supreme Court in the case of Goa Foundation. However, the said interpretation in the said OM is also erroneous since the said order directed that the distance should be 10 kms. This is evident from re copy of the said order, which is attached as Document-16. The same be clarified by a three judges bench of the Hon'ble Supreme Court in the case of Goa Foundation v. Union of India (2014) 6 SCC 590, wherein the court held as follows:
"it will be clear from the order dated 4-12-2006 of this Court that this Court has not passed any orders for implementation of the taken on 21-1-2002 to notify areas within 10 kin of the bound national parks or wildlife sanctuaries as eco-sensitive areas wit to conserve the 12 forest, wildlife and environment. By the order dated 04- 12- 2006 of this Court, however, the Ministry of Environment Forests, Government of India, was directed to give a final opportunity States/ Union Territories to respond to the proposal and also to the Standing Committee of the National Board for Wildlife the cases in which environment clearance has already been granted in respect of activities within the 10 km zone from the boundaries of the sanctuaries and national parks. There is, therefore, no direction, interim or final, of this Court prohibiting minim; activities within 10 KM of the boundaries of national parks or wildlife sanctuaries."
4. Hence, the basis of 2009 OM is completely misplaced and cannot be a basis for concluding that there was any violation by the Project Proponent or that the EC was erroneously granted.
5. That it is also relevant to mention that the 2009 OM was superseded by OM dated 08.08.2019. a copy of which is attached as Document-17. it has been clearly stated that for projects located outside the Eco-sensitive zones, prior clearance from Standing Committee of National Board for Wildlife will not be applicable. Further, OM dated 16.07.2020 clarifies that State Governments not to insist upon wildlife clearance for developmental projects outside the Protected Areas.
III. PROJECT IS OUTSIDE THE ECO-SENSITIVE ZONE I. That admittedly, the project in question is located outside the notified Eco-sensitive Zones of Khol Hi Raitan Wildlife sanctuary and Bir Shikargarh Wildlife sanctuary, even as per the report of the Joint Committee. As far as Sukhna Wildlife sanctuary is concerned. the project is beyond the 1 km. specified by the Hon'ble Punjab and Haryana High Court and as per the order passed by the Hon'ble Supreme Court in Goa Foundation (Supra).
IV. MASTER ZONAL PLAN I. The Township in question is Sector-2 of Pinjore-Kalka Urban Complex and is approved as per Master Plan by Haryana Urban Development Authority. The Master Zonal plan is prepared in consultation with the Departments of Environment. Forest, Urban Development. Tourism, Municipal. Revenue, Agriculture. Haryana State Pollution Control Board. The Township is beyond the Eco- sensitive zone of the 2 wildlife sanctuaries and forms Sector-2 of the Master Plan. Hence. the Project Proponent has not committed any violation and the construction is in accordance with the sanctioned and approved land use, it is relevant to mention that none of the departments ever raised an issue regarding the same. The permitted land use of the area has been shown to be 'Residential' and there is no violation by the Project Proponent."
In addition to the mentioning of submission. it is also appropriate to mention here the General Conditions specifically incorporated under the heading "PART B GENERAL CONDITIONS" in the EC letter granted 13 vide letter dated 25.10.2010 and relevant portion of OM dated 02.12.2009. issued vide MoEF& CC.
GENERAL CONDITIONS EC letter dated 25.10.2020:
"All other statutory clearances such as the approvals for storage of diesels from Chief Controller of Explosives, Fire Department, Civil Aviation Department, Forest Conservation Act, 1980 and Wildlife (Protection) Act, 1972, PLPA, 1900, Forest Act, 1927 etc. shall be obtained, as applicable by project proponents from the respective authorities prior to construction of the project."
Relevant portion of OM dated 02.12.2009:
"Procedure for consideration of proposals for grant of Environment Clearance under EIA Notification 2006 which involves Forest land and/or Wildlife Habitat" It is specifically provided that:-
"...... A specific condition shall be stipulated that the environmental clearance is subject to their obtaining prior clearance from forestry and wildlife angle including clearance from the standing Committee of the National Board for Wildlife as applicable. The investment made in the project, if any, based on environmental clearance so granted, in anticipation of the clearance from forestry and wildlife angle shall be entirely at the cost and risk of the project proponent and Ministry of Environment & Forests shall be responsible in this regard in any manner".
Having gone through the all documents pertaining to the matter and careful consideration upon the submission of the project proponent and reports of the committees, it is considered view that joint reading of the conditions imposed by SEIAA Haryana vide letter dated 25.03.2010 and OM issued by MoEF & CC as reproduced above clearly points out that it was the sole responsibility of the Project Proponent in the present case to obtain all the requisite statuary clearance from the relevant Authorities including Consent under Wildlife (Protection) Act, 1972 and Forest Conservation Act, 1980. However, the plea of project proponent regarding not knowing about the statuary requirement have no effect as it is a settled Principal of Law that "Ignorantia non excusat" i.e. ignorance of law is no excuse. Not being aware about the rules, regulations and Notification, can never be taken to be as blanket protection for violating the conditions imposed.
Further, the analysis of the reports of the committee dated 24.11.2021 and the in house comments of the Forest Department submitted vide letter dated 16.06.2021. clearly reveals that no clearance has been obtained from the requisite Authority, prior to starting of construction of the Project, which amounts to a violation of Conditions of the EC. Thus, the answer to the fourth issue is affirmative."
Stand of the PP 14
7. As against above, the PP has filed its reply contesting the report of SEIAA to the effect that EC was wrongly granted. Apart from reply, the PP has also filed I.A. Nos. 82-83/2022 for setting aside the order of SEIAA and stay thereof till hearing by this Tribunal. I.A. No. 75/2022 was also filed by the PP for stay of notice issued by the SEIAA. PP has also filed Appeal No. 15/2022, M/s Amar Nath Aggarwal Investment Pvt. Ltd. vs. SEIAA & Ors. which seeks same relief as I.A. No. 82/2022. Stand of the PP is that General Condition in EIA Notification dated 14.09.2006 is not applicable as rightly held by SEIAA, following the judgment of Hon'ble Supreme Court in Re: Noida Memorial Complex Near Okhla, Bird Sanctuary1. Further, requirement of Wildlife Clearance in EC condition was based on order of Hon'ble Supreme Court dated 04.12.2006 in Goa Foundation v. UoI & Ors. which has been latter clarified vide judgment dated 21.04.20142, in para 50 that prohibition in 10 kms was not a direction but only a proposal. It was further clarified in para 51 of the judgment that distance has to be as specified in notification for eco-
sensitive zone which was directed to be issued within six months of the judgment. If ESZ notification in respect of the wildlife sanctuary has not been issued, requirement of wildlife clearance cannot be held applicable for a project within 10 kms of the boundaries of the sanctuary. MoEF's letter has been issued in the light of judgment of the Hon'ble Supreme Court in Goa Foundation and has to be read with the said judgement.
Stand of the Applicant and SEIAA
8. Main contention raised on behalf of the applicant is that EC granted to the PP was in violation of EIA notification dated 14.09.2006. By virtue 1 (2011) 1 SCC 744 2 (2014) 6 SCC 590 para 50 15 of general conditions appended to the next notification, project should have been taken as Category A and appraised as such. SEIAA is justified in cancelling the EC in view of location of the project within 10 kms from Sukhna Wildlife Sanctuary for which a draft notification to declare eco-
sensitive zone is under process.
9. Learned counsel for SEIAA Haryana has supported the stand of the applicant about requirement of wildlife clearance when the project is within 10 kms from a wildlife sanctuary in respect of which ESZ notification has not been issued. In support of this submission, reliance has been placed on MoEF's notification dated 08.08.2019 and 16.07.2020.
Our finding
10. We have considered the rival submissions and perused the documents. From the order of SEIAA, it is seen that even according to it, the General Condition appended to EIA Notification dated 14.09.2006 is not applicable. Thus, EC by SEIAA was permissible. Wildlife clearance requirement has been revoked on the basis of order of the Hon'ble Supreme Court in Goa Foundation dated 4.12.2006 which was clarified in judgement dated 21.4.2014, in Para 50 and 51 of the said judgment to the effect that there is not such requirement. Wildlife clearance is required in terms of ESZ notification which was directed to be issued within six months though it has still not been issued. Thus, assumption in the order of SEIAA that requirement of such clearance was applicable in respect of the project in question is not correct. Accordingly, the report of SEIAA and stand of the applicant cannot be accepted, so as to annul the EC on that ground. Objection of the PP and prayer in I.A. No. 82-83/2022 is accepted to this extent, rendering it unnecessary to pass separate order on the appeal of the PP.
1611. We now deal with the findings of SEIAA about non-compliances of EC conditions as follows:-
"Part-A: Specific Conditions Sr. Conditions Compliance No. viii Ambient noise levels shall Not complied with.
confirm to the residential and commercial standards Tests reports are not submitted both during day and night. by the Project Proponent Incremental pollution loads on the ambient air and noise quality should be closely monitored during construction phase.
Adequate measures should be taken to reduce ambient air pollution and noise level during construction phase, so as to confirm to the stipulated residential standards.
xviii The project proponent will Not complied with.
construct rain water
harvesting pits @ 1 pit per Rainwater harvesting pits as
acre for recharging the per drawings approved by
ground water within the HUDA are provided.
project premises.
They are also cleaned
regularly; as informed by the
project proponent. Only 7 RWH
provided in place of 9 RWH.
Operational phase
6. Ambient noise level should Not complied.
be controlled to ensure that
it does not exceed the Not submitted noise monitoring
prescribed standards both report.
within and at the boundary
of the proposed Township
project.
9. The project proponent shall Not complied with.
setup rain water
harvesting pits @ 1 Out of total 9 RWH pits, 07
pit/area having 400 mm Rainwater harvesting pits have
bore and 200 mm slotted bacon provided. These are
pipe as proposed for roof regular cleaned as desired as
run-off and surface run-off, stated by PP.
as per plan submitted
should be implemented.
Before recharging the
surface run off, pre-
treatment must be done to
remove suspended matter,
oil and grease. The bore
17
well for rainwater
recharging should be kept
at least 5 mts, above the
highest ground water
table.
Part-B: General Conditions
Sr. Conditions Compliance
No.
2. Six monthly compliance Not complied with.
reports should be
submitted to the HSPCB Not submitted Six monthly
and Regional office, MoEF, compliance reports to SEIAA
GoI, Northern Region, regularly.
Chandigarh and a copy to
the SEIAA
4. All other statutory Not complied with.
clearances such as the
approvals for storage of PP has not submitted NOC
diesel from Chief Controller from NWLB for ESZ for
of Explosives, Fire Sukhna Lake.
Department, Civil Aviation
Department, Forest
Conservation Act, 1980
and Wildlife (Protection)
Act, 1972, Forest Act,
1927, PLPA 1900, etc. shall
be obtained, as applicable
by project proponents from
the respective authorities
prior to construction of the
project.
"
12. PP has disputed the above findings. It is submitted that the compliance reports have been duly submitted. If the same had not been submitted, the SEIAA could have taken action so far. Rainwater harvesting pits have been set up or are in the process of being provided, as the project is yet to be cleared. Similarly, the noise monitoring report and noise level test reports will be submitted as the project is yet to be completed. On this aspect, we direct that the matter be further examined by SEIAA, after giving opportunity to PP. If non compliances are still found, SEIAA will be free to take appropriate action as per law.
EA will stand disposed of, accordingly.18 Appeal No. 15/2022
In view of order passed in E.A. No. 09/2021, no separate order is necessary on the appeal.
The Appeal stands disposed of accordingly.
A copy of this order be forwarded to the SEIAA, Haryana, by email for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM May 19, 2022 E.A. No. 09/2021 in O.A. No. 78/2021 & Appeal No. 15/2022 A 19