National Green Tribunal
Mohammed Jishar vs Union Of India Ministry Of Environment ... on 25 May, 2022
Bench: K. Ramakrishnan, Satyagopal Korlapati
Item No.03: Court No - 1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 241 of 2020 (SZ)
(Through Video Conference)
IN THE MATTER OF
1. Mohammed Jishar, aged 42 years,
S/o, Hamza
Residing at Pulikkal House,
Veliancode P.O,
Malappuram District,
Kerala - 679 579.
2. Beena K.D, aged 43 years,
W/o Das P K,
Residing at Puthnvettil House,
Valappadu P.O,
Anamizhungi, Thrissur District,
Kerala.
3. K.S. Azkariya, aged 48 years,
S/o, K.M. Saidu Muhammed,
Kalappurakkal, Cheranelloor P.O, Kochi,
Ernakulam District,
Kerala - 682 034. ...Applicant(s)
Versus
1. Union of India represented by the Secretary,
Ministry of Environment, Forests & Climate Change,
India Paryavaran Bhavan, Jor Bagh,
New Delhi - 110 003.
2. Ministry of Road Transport & Highways,
Transport Bhawan, 1, Parliament Street,
New Delhi - 110 001.
Represented by the Secretary.
3. The National Highways Authority of India,
G-586, Sector 10,
Dwaraka,
New Delhi - 110 075.
Represented by the Chairman.
4. The Project Director,
National Highways Authority of India,
1
VII/511 B, Neithell - Mavelipuram Road,
Mavelipuram, Kakkanad,
Ernakulum - 682 030.
5. The State of Kerala,
Represented by the Secretary,
Public Works Department,
Government of Kerala,
Thiruvananthapuram - 695 001. ...Respondent(s)
Date of Judgment: 25.05.2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
For Applicant(s): Mr. Harish Vasudevan
For Respondent(s): Mrs. M. Sumathi for R1
Mrs. M. Sumathi represented
Mr. Su. Srinivasan for R3 & R4
Mr. G. Prabhu represented
Mr. E.K. Kumaresan for R5
JUDGMENT
1. As per order dated 14.09.2021, this Tribunal had considered the supplementary report submitted by the Joint Committee and also directed the applicant to take steps to complete the service on second respondent.
2. Even on certain occasions, there was no representation for the applicant and the direction issued by this Tribunal has not been complied with.
3. The grievance in this application was regarding the construction activities of National Highway No. 66 carried out by the Respondents No. 3 & 4 for the stretch of National Highway Ramanattukara-Edapally Section in Eranakulam District. The project covers around 167 kilometres, but in fact as per the EIA Notification, 2006, it will be falling under „Category A‟ and without conducting proper Environment Impact Assessment and getting Environmental Clearance, they could not proceed with the same. The 2nd respondent had made arrangements and issued notifications under National Highways Act, 1956 during February 2020, for the purpose of acquisition of land as per Annexure A1 notification dated, 12.02.2020.
24. The authorities were now trying to widen the road without getting prior Environmental Clearance. According to the applicant, this is against the Dictum laid down in the decision reported in Society for Protection of Environment and Biodiversity Vs Union of India and others in O.A. No. 677 of 2016, the Principal Bench of National Green Tribunal, New Delhi P.V. Krishnamoorthy Vs The Government of India & Others in (WPC No. 16630 of 2018) in connected matters, Pandarinathan Govindarajulu Vs union of India & Others, of Hon'ble Madras High Court, Research Foundation for Science Technology and Natural Resource Policy Vs. Union of India reported in AIR 2007 Sc (Supp) 852, A.P. Pollution Control Board Vs. Prof. M.V. Nayudu and Others (1999)1SCR235.
5. According to the applicant the respondents were making ingenious method of reducing the length of widening portions in piecemeal, so as to avoid the process of undergoing obtaining Environmental Clearance. So the applicant filed this application seeking the following reliefs:
i) Declare that the obtaining of prior Environmental Clearance from the 1st respondent is a pre-requisite for the construction/development/widening of the National Highway-66 from Ramanattukara to Edappally.
ii) Restrain the Respondents No. 2 to 5 from carrying any action for the implementationof the project of construction/development/widening of the National Highway-66 from Ramanattukara to Edappally without obtaining prior Environmental Clearance from the 1st respondent;
6. This Tribunal had appointed a Joint Committee comprising of 1) a Senior Officer from Ministry of Environment, Forests and Climate Change, (MoEF&CC) Regional Office, Bangalore and 2) a Senior Officer deputed by the National Highway Authority of India, Regional Office, Thiruvananthapuram, Kerala to inspect the area in question and to file a factual as well as action report, if there is any violation found.
7. The committee was directed to ascertain as to:
i) Whether prior environmental clearance was required for the purpose of carrying out the project in question,
ii) Whether if such projects are allowed to continue in piecemeal with ultimate aim of completing the entire stretch without conducting any prior environmental impact assessment and obtaining prior Environment Clearance, will it have any impact on environment.
iii) Even if the project had to continue what are all the 3 precautions to be taken by them to avoid the possible environmental impact of such project.
iv) If there was any violation found, the committee was also directed to assess the environment damage caused on account of such violation and assess the environmental compensation to be recovered from the National Highways Authority of India.
8. The Ministry of Environmental, Forests and Climate Change (MoEF&CC), Regional Office, Bangalore was designated as the nodal agency for co-ordination and for providing all necessary logistics for this purpose.
9. The First respondent/Ministry of Environment, Forests and Climate Change had filed their counter affidavit contending that the project was widening of National Highway 66 in the Kapplrikkad-Edappally section in Ernakulum and Malappuram District. The Section was part of the Ramanattukara - Edapally section covering a stretch of 167 Km involving land acquisition and with additional right of way greater than 45 meters is the allegation made in the application. As per the provisions of the EIA Notification 2006, they will have to obtain Environmental Clearance (EC) in respect of certain categories enumerated therein.
10. As regards, the Highway projects are concerned, that will fall under entry 7(f) of the Schedule of EIA Notification 2006 which reads as follows:-
411. As per the amended Notification, New National Highways and expansion of National Highways greater than 30 Km, involving additional right of way or land acquisition greater than 20 Km involving land acquisition or passing through more than one state was listed in the Schedule 7 (f) of the EIA Notification, 2006 and only in such cases they will have to obtain prior Environmental Clearance (EC).
12. Further as per the amended Notification, namely, S.O. 2559(E) dated 22.08.2013.
"Expansion of National ways greater than 100 Km involving additional right of way or land acquisition greater than 40m on existing alignments and 60m on re-alignments or by-passes alone require prior Environmental Clearance".
13. They have also given certain regulatory mechanism which National Highways Authority has to follow the guidelines issued by the Ministry of Road Transport & Highways (MoRTH)/IRC from time to time which reads as follows:-
14. The projects which do not fall under the purview of the EIA Notification, 2006 and its amendments had to obtain necessary clearances from the various departments for the following activities:-
515. In the matter of SLP (C) No. 8665 - 8667 of 2020 titled as "The National Highways Authority of India vs. Pandarinathan Govindarajulu & Others. The Hon‟ble Apex Court had directed Ministry of Environment, Forests and Climate Change (MoEF&CC) to constitute an Expert Committee to examine "whether segmentation is permissible for national Highways projects beyond a distance of 100 Kms and, if permissible, under what circumstances".
16. The Ministry vide OM No. F. No. 3-65/2020/IA, III dated 15th march, 2021 had constituted the said Committee. The report is under finalization. So, they prayed for accepting their contentions and passing appropriate orders.
17. The Joint Committee had filed an Interim report which reads as follows:-
6 7 8 9 1018. The applicant had filed their objection to the Joint Committee report and this 11 Tribunal had directed the Joint Committee to consider the same and to file a detailed report. Accordingly, the Joint Committee had filed the supplementary report and was extracted in Para (1) of the order dated 14.09.2021 which reads as follows:-
12Sl. Objections made by the Response / comments No. applicant 1 Para 1 No Comments.
2 Para 2. As per the information from NHAI, it is reiterated that the acquisition of land for It is respectfully submitted that the expansion varying from 0 m to 38 m.
submission of the respondents in the Further, in realignment and Bypasses joint committee report that all the section, 45 m land has been acquired to acquisition of the land are within accommodate the six-lane configuration inside 7 to 45 meters and the from Ramanattukara to proposed RoW for 6 lane Edappally Section of NH-66.
configurations is 45 meters with additional land acquisition varying from zero to 38 meters and that in In Manathala Village in Thrissur bypasses realignment maximum with District in the design ch from of land acquisition is 45 meters from 349.740 to 349.800 - The location Ramanattukara to Edapally is not falls under the starting point of the true. The applicants herein submit Chavakkad Bypass wherein 45 m land that in various areas, the respondents has been acquired. The Land are making land acquisitions in excess Acquisition Plan (LAP) has been of what is submitted in the joint attached asAnnexure - II. committee report. Some of such acquisitions are as follows: In Orumanyoor Village in Thrissur District in the design Ch from In Manathala Village in 352.350 to 352.420 - The said location Thrissur district, in design falls under the realignment portion to chainage from 349+730 to straighten the curve which exists at 349+ 800, in the existing Ch Km alignment, the acquisition 352.380 wherein 45 m land has been done is more than 40 meters acquired. The Land Acquisition Plan in width. (LAP) has been attached as Annexure • In Orumanayoor -III.
Village in Thrissur district, in the design chainage from In Orumanyoor Village in Thrissur 353+980 to 354+ 150, in the District in the design Ch from existing alignment, the width 353.980 to 354.150 - The said location of additional right of way is falls under the realignment portion to more than 40 metersin width. straighten the curve which exists at • In Orumanayoor Village in Ch Km 354.000 wherein 45 m land Thrissur district, in the design has been acquired. The Land chainage from 353+980 to Acquisition Plan (LAP) has been 354+150, in the existing attached as Annexure -IV.
alignment, the width of
additional right of In Valappad Village in Thrissur
way is more than 40 meters in District in the design Ch from 374.780
13
width. to 374.910 - The said location falls
• In Valappadu Village in under the realignment portion to
Thrissur district, in the design straighten the curve which exists at Ch chainage from 374+780 to Km 374.850 wherein 45 m land has 374+910, the acquisition for been acquired. The Land Acquisition additional right of way is more Plan (LAP) has been attached as than 40meters in width. Annexure -V. • In Ala Village in Thrissur district, the design In Ala Village in Thrissur District in chainage from 392+340 to the design Ch from 392.340 to 392.720 392+720, acquisition is done - The said location falls under the more than 40 meters for the realignment portion to straighten the additional right of way in sharp curve which exists between Ch existing alignment. Km 392.300 to Ch Km 392.700 wherein 45 This is in Edapally-Ramanattukara m land has been acquired. The Land stretch. This area is not involved in Acquisition Plan (LAP) has been the realignment or by-pass area as attached as Annexure -VI. stated by the sub-committee, but comes within the existing The submission of the applicant that alignment. These are only some of at Cheranellore Junction the the acquisitions done by the acquisition of land is for a width of respondents in this manner. The 100 m is not based on the facts and applicants have been able to find figures. Further at Cheranellore out the exact details the above Junction the acquisition of mentioned chainage for these area additional land below 38 m including only due to the time constraint both the sides. The land acquisition granted by this Hon'ble Tribunal. plan isattached as Annexure - VII. Para 3.
It is Submitted that in the project at the Cheranelloor Junction in Ernakulam district, the approved alignment for the proposed acquisition contains a butterfly flyover having more than 100 meters width in both sides in the year 2019. The said flyover is still part of the project and as per the information received from Special Deputy Collector (LA), it is seen that as per the notification dated 29.11.2018, it was proposed to acquire 14.6768 hectares of land for the construction of the above-
mentioned flyover. However, in the notification dated 12.02.2020, only 5.0928 hectares of land is proposed for the said flyover construction.
Now, the applicant submit that in order to circumvent the issue of obtaining prior environmental clearance, the respondents have reduced the acquisition of this area.
The modus operandi of the respondents is to complete this land acquisition process and then issue fresh notifications under Section.
This is nothing but apprehension which was raised by the EAC in annexure A9. On the earlier occasion, the piece by the EAC in annexure A9. On the earlier occasion, the piece meal approach was taken up length wise now it is being done for the width of the project in various stages. A true photocopy of the information dated 14 11.08.2020, obtained through RTI from the office of the Special Deputy Collector, (I.A) along with its English Translation is produced herewith and marked as Annexure A10 4 Para 4 No comments.
3. RECOMMEDNATIONS OF THE COMMITTEE The above reveals that there are two merits in the application/objections made by the Applicant and it is liable to be dismissed.
19. Considered the pleadings, reports filled and objections filed by the parties to the reports and submissions made by the counsel appearing for the parties.
20. The short question that arises for consideration as to whether the project requires prior Environmental Clearance (EC) or not.
21. It is seen from the report submitted by the Joint Committee that it does not exceed the extent mentioned in the amended Notification, 2013 referred to above. Further the Hon‟ble Apex Court in Civil Appeal Nos. 4035 - 4037 of 2020, The National Highways Authority of India vs. Pandarinathan Govindarajulu & Another had set-aside the order passed by the Hon‟ble High Court of Madras in WP(C) No. 16630 of 2018 and other connected matters relied on by the applicant in the Original Application and observed that if the threshold limit of the length and the right of way did not exceed the limits provided under the amended Notification, 2013 for establishing National Highways as on the law exist today, there is no necessity to obtain prior Environmental Clearance (EC). But in that decision, the Hon‟ble Apex Court had directed the Ministry of Environment, Forests and Climate Change (MoEF&CC) to consider the question as to whether segmentation of the project can be possible for the purpose of avoiding the question of obtaining Environmental Clearance (EC) and if so, under what circumstances it can be possible. It is for the policy maker, namely, Ministry of Environment, Forests and Climate Change (MoEF&CC) to take a decision on this aspect.
22. It is also seen from the counter affidavit filed by the first respondent that a committee had been already constituted as directed by the Hon‟ble Apex Court in the decision titled as "The National Highways Authority of India vs. Pandarinathan 15 Govindarajulu & Others" cited supra and it is under the stage of finalisation and after considering the committee‟s report, necessary steps will have to be taken in this regard.
23. As the law stands today, there is no necessity for obtaining any Environmental Clearance (EC) for the project in question and as such the applicant is not entitled to get any of the reliefs claimed in the application.
24. The National Highways Authority of India (NHAI) is directed to carry out the recommendations made by the Joint Committee, while carrying out the project in question. In view of the decisions of the Hon‟ble Apex Court and also the report submitted by the Joint Committee after considering the objections filed by the applicant regarding the extent of acquisition and the right of way, there is nothing that survives in the matter.
25. We feel, that the application can be disposed of with following directions:-
i) The applicant is not entitled to get any of the reliefs claimed as per the law stands today and considering the nature of project envisaged by the National Highways Authority of India (NHAI), there is no necessity to get any prior Environmental Clearance (EC) for the project in view of the decision of the Hon‟ble Apex Court in "The National Highways Authority of India vs. Pandarinathan Govindarajulu & Others" (2021) 6 SCC 693.
ii) National Highways Authority of India (NHAI) is directed to carry out the recommendations made by the Joint Committee while executing the project in its letter and spirit.
iii) Considering the circumstances, the parties are directed to bear the respective cost in the Original Application.
iv) The Registry is directed to communicate this order to the official respondents including the National Highways Authority of India (NHAI) for their information and also for compliance of the direction.16
26. With the above observations and directions, the Original Application is disposed of.
Sd/-
..................................J.M. (Justice K. Ramakrishnan) Sd/-
.................................E.M. (Dr. Satyagopal Korlapati) O.A. No.241/2020 25.05.2022. (Sr.) 17