Orissa High Court
Sikshya "O" Anusandhan vs State Of Odisha & Others .... Opp. ... on 15 March, 2023
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.35001 of 2022
Sikshya "O" Anusandhan, .... Petitioner
Jagamara
Mr. A. Mohanty, Sr. Advocate.
Dr. P. Chulli, Advocate.
-versus-
State of Odisha & others .... Opp. Parties
Mr. H.K. Panigrahi,
Additional Standing Counsel.
Mr. B.S. Rayaguru, CGC
for O.P. No.1
Mr. S.K. Mishra, Advocate
for O.P. No.7
Mr. P.K. Ray, Sr. Advocate for O.P.
Nos.11 to 15
CORAM:
DR. JUSTICE S.K. PANIGRAHI
ORDER
Order 15.03.2023 No.
07. 1. This matter is taken up through Hybrid Arrangement.
2. Heard learned counsel for the paties.
3. The present Writ Petition is directed against an ex parte interim order dated 12.12.2022 passed by the Hon'ble National Green Tribunal, Eastern Zone Bench, Kolkata in Original Application // 2 // No. 157/2022/EZ. The said matter was admitted by this Court vide its order dated 16.01.2023. Subsequently all parties have entered appearance and the pleadings have been completed by the parties. The interim order impugned directed inter alia that "until further orders, we direct that there shall be a stay on all construction activity over the land in question" thereby directing a blanket ban on all "construction" activities. It is this part of the order passed by the Hon'ble NGT that was stayed by this Court vide its order dated 16.01.2023.
4. From the pleadings filed before this court that the Respondent No.1 the Odisha State Pollution Control Board (OSPCB) has granted necessary permission i.e. "Consent to Establish" under Section 25 of the Water (Prevention & Control of Pollution) Act, 1974 and under Section 21 of the Air (Prevention & Control of Pollution) Act, 1981 vide letter No. 6854 dated 3.01.2023 for the construction of the hospital campus over the land in question after receiving the required clearances and approvals prior thereto. More importantly, the State Environment Impact Assessment (SEIA) has also accorded "Environmental Clearance" for the construction of the hospital campus on behalf of the Ministry of Environment, Forest and Climate Change, GoI on 2.01.2023. It is pertinent to note at this juncture that the SEIA has taken into account the objections received during the consideration for the grant of the Environmental Clearance which are akin to the substratum of the allegations raised i.e. that Page 2 of 8 // 3 // the construction work was being done without the requisite approvals. However, a bare perusal of the environment clearance so granted unambiguously provides as under;
"4. The SEAC have appraised the proposal in its meeting dated 02.11.2022 and recommended for grant of Environmental Clearance for the project valid for a period of 10 years, stipulating various conditions.
5. A complain petition has been received by SEIAA on dated 18.11.2022 in regard to the project. The proposal was placed in the 102nd meeting and the Authority decided to request SPCB to conduct site inspection and submit a report in regards to the violations as alleged in the complaint petition made by Public on construction of Hospital building. Now, the SPCB vide their letter no. 954/SEAC-MISC-II dated 17.12.2022 has submitted site inspection report with the following observation: -
i) The eleven nos. of plots measuring 2.07 Ha have been converted from "Nayanojori" kissam to Gharabari Kissam by competent authority as per the ROR.
ii) The Land Use and Land Cover (LULC)
map approved by Bhubaneswar
Development Authority (BDA) shows
that the project site is categorized under public and semi-public zone.
iii) There is no water reservoir or ponds exist over the land.
iv) Two plots in the project area i.e., 419 and 420 is used by the public as an approach road to the Lakheswar Temple situated about 100 meter in the South-Page 3 of 8
// 4 // East of the plot.
v) Pillar posting have been made and no construction activity were found to be carried out except levelling of ground, boundary wall at the southern part of the site and installation of three (03) nos. of bore wells within the demarcated plot area. In addition, three number of labour hutments were constructed outside the pillar posting project area.
6. The matter was further examined in the State Environment Impact Assessment Authority (SEIAA), Odisha in its 104th meeting held on 29.12.2022 and authority observed the following ;
(i) Based on the undertaking submitted by the project proponent as well as the site inspection report of SPCB dated 17.12.2022, the SEIAA concluded that the construction activities so far carried out by the project proponent are admissible for securitizing the land as per O.M. No. F. No. IA3-22/10/2022-IA.III [E 177258] dated 29.03.2022 of MoEF& CC, Govt. of India.The kisam of the land has been converted to "Gharabari" by the competent authority.
(ii) Hon'ble NGT vide its order dated 12.12.2022 on O.A. no. 157/2022(EZ) in the matter has directed that until further order, there shall be a stay on all construction activity over the land in question.
(iii) The SEAC has already recommended the proposal for grant of EC with stipulated conditions.
Page 4 of 8
// 5 //
7. Environmental Clearance (EC) is granted to the project valid for a period of 10 years under the provisions of EIA Notification No. S.O. 1533 (E) dated the 14th September, 2006 of the Government of India in the erstwhile Ministry of Environment and Forests, as amended from time to time for "Proposed Construction of IMS & SUM Hospital (Campus-2) building (2B+G+9) on Khata No
- 626/1 and Plot no.
287,296,297,298,299,415/4195,416,417,418,419, 420 With Totalbuilt-up area of 89712.23 Sqmt located at Mouza-Phulnakhara, Tahasil- Bhubaneswar, District-Khordha" with the following stipulations, environmental conditions and safeguards."
5. There is a further stipulation under clause 7.21 (v) that the sub- committee of SEAC will visit the site within 3 months from the date of issue of the environmental clearance to verify the progress of the project and a dereliction in that regard in entail revocation of the EC so granted. The same thus has some bearing on the matter given the fact the EC in question has a specific time frame and manner of implementation envisaged for the construction work for which the same has been granted as hereinabove. It is also pertinent to note at this juncture that reliance was placed on an Office Memorandum issued by the Ministry of Environment and Forests on 19.08.2010 which deals with "activities which can be undertaken without/prior to obtaining environment clearance". It is this notification which Page 5 of 8 // 6 // states that prior to obtaining an environmental clearance no construction activity whatsoever can be undertaken except for fencing of the site to protect it from getting encroached and construction of temporary sheds for the guards. It may, however, be noted that the same is rendered nugatory in view of the fact that the EC as reproduced hereinabove is a full- fledged environmental clearance has been granted to the petitioner herein thereby reliance on the aforesaid Office Memorandum is meaningless.
6. Be that as it may. It is clarified that the above observations are being made only to bring home the point that the balance of convenience prima facie lies in favour of the petitioner herein and the same are not being made to dwell upon the merits of the matter which the Hon'ble NGT is in seisin over the matter which is alone competent to decide in accordance with law and materials placed before it. The principle of balance of convenience requires that where an irreparable loss is likely to be caused to a party the same needs to be addressed and protected. The fact that the project in question relates to the establishment of the hospital dedicated to the people of the state at large cannot be lost sight of and the fact that any undue delay will cause irreparable loss to the petitioner which cannot be ruled out.
7. A preliminary objection that was raised by the Respondent Nos.11 to 15 herein was with regard to the maintainability of the instant petition itself. However, the said issue has now attained Page 6 of 8 // 7 // quietus after the pronouncement by the Hon'ble Apex Court in Madhya Pradesh High Court Advocates Bar Association and Anr. Vs. Union of India and Anr.1 that, "the National Green Tribunal U/s 14 &22 of the NGT Act does not oust the High Court Jurisdiction Under Article 226 &227 as the same is a part of the basic structure of the constitution." The same view has also been echoed forth in K T Rama Rao Vs. Anumula Revanth Reddy and Ors2 in that mere existence of alternative forum does not create a legal bar. In fact, that doesn't take away from the fact that the matter is pending before the Hon'ble National Green Tribunal, which is a specialised body competent and empowered to deal with such matters.
8. Taking a holistic consideration of the facts and circumstances of the case and the fact that the instant petition is directed against only an interim order passed by the Hon'ble National Green Tribunal and the petition is still pending adjudication before it, this Court directs that, pending the proceedings before the Hon'ble NGT, the petitioner be permitted to carry out construction work within the permissible contours of law in line with the approvals and permissions granted to it by competent authorities. However, the Hon'ble Tribunal is free to pass final order uninfluenced by any of the observation made herein above.
1 WP(C) 433 of 2012 on 18.05.2022 (Para No.38) 2 WP Nos. 7879 of 2020 and 7961 of 2020 decided on 27.04.2022 Page 7 of 8 // 8 //
9. The Writ Petition, thus, stands disposed of in the above terms. As a sequel to the above, pending interlocutory applications also disposed of in light of the above. Ordered accordingly.
(Dr. S.K. Panigrahi) Judge amit Page 8 of 8