Case BriefsSupreme Court

Supreme Court: In the matter concerning the housing project, on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary, the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary.

Stating that the entire exercise smacks of arbitrariness on the part of Government including functionaries, the bench said that the Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco­sensitive zone. It said,

“The entire exercise of obtaining clearance relating to the project is quashed.  We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly.”

The Tata HDCL proposed to develop a project, namely, “CAMELOT” in the revenue estate of village­Kansal, Tehsil ­Kharar, District­ Mohali, State of Punjab. The total project area is 52.66 acres. It was argued that the environment clearance dated 17.09.2013 suffered from legal malafides, and it amounted to colourable exercise of power since about 95 MLAs of the State of Punjab are the beneficiaries of the proposed project.

The Court took note of the fact that the proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab. It said,

“It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters.”

ON the environmental aspect, the Court said that the most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala.

The Court, hence, held that considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so.

“The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco­sensitive zone around a Wildlife and has permitted setting up of high­rise buildings up to 92 meters in the area in question, which is not at all permissible.”

[Tata Housing Development Company Ltd. v. Aalok Jagga, 2019 SCC OnLine SC 1419, decided on 05.11.2019]

Case BriefsSupreme Court

Supreme Court: In a case challenging the grant of an Environmental Clearance (EC) for the development of a greenfield international airport at Mopa in Goa, the Bench of Dr. DY Chandrachud and Hemant Gupta, JJ directed Expert Appraisal Committee (EAC) to revisit the conditions subject to which it granted its EC within a month.

Appraisal by the EAC

The Court explained ‘Appraisal by the EAC’ as structured and defined by the 2006 notification. It said that the process of appraisal is defined to mean “a detailed scrutiny” by the EAC of the application and other documents like the EIA report and the outcome of the public consultation, including the public hearing proceedings, submitted by the applicant to the regulatory authority for the grant of an EC. The EAC is under a mandate to conduct the process of appraisal in “a transparent manner”. On the conclusion of these proceedings, the EAC has to make “categorical recommendations” to the regulatory authority. The recommendations made by the EAC to the regulatory authority must be based on “reasons”. Considering this, the Court noticed,

“That the project proponent must submit all information and data without concealing relevant features is a basic hypothesis and expectation of the 2006 notification. The EAC has, in the brief reasons which are contained in para 3.1.2, not applied its mind at all to the environmental concerns raised in relation to the project nor do its reasons indicate an appraisal of those concerns by evaluating the impact of the project.”

Hence, the Court said the appraisal by the EAC in the present case neither the process of decision making nor the decision itself can pass legal muster.

Failure of due process

On EAC:

“The EAC, as an expert body abdicated its role and function by taking into account circumstances which were extraneous to the exercise of its power and failed to notice facets of the environment that were crucial to its decision making. The 2006 notification postulates that normally, the MoEFCC would accept the recommendation of the EAC. This makes the role of the EAC even more significant.”

On NGT:

“The NGT is an adjudicatory body which is vested with appellate jurisdiction over the grant of an EC. The NGT dealt with the submissions which were urged before it in essentially one PART J 90 paragraph. It failed to comprehend the true nature of its role and power under Section 1(h) and Section 20 of the NGT Act 2010. In failing to carry out a merits review, the NGT has not discharged an adjudicatory function which properly belongs to it.”

Directions

  • Until the EAC carries out the fresh exercise as directed above, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended;
  • Upon reconsidering the matter in terms of the present directions, the EAC, if it allows the construction to proceed will impose such additional conditions which in its expert view will adequately protect the concerns about the terrestrial eco systems noticed in this judgment. The EAC would be at liberty to lay down PART K appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment;
  • The EAC shall have due regard to the assurance furnished by the concessionaire to this Court that it is willing to adopt and implement necessary safeguards bearing in mind international best practices governing greenfield airports;
  • State of Goa as the project proponent and the MoEFCC, as the case may be, has the liberty to file the report of the EAC before this Court in the form of a Miscellaneous Application so as to facilitate the passing of appropriate orders in the proceedings; and
  • No other Court or Tribunal shall entertain any challenge to the report that is to be submitted before this Court by the EAC in compliance with the present order.

[Hanuman Laxman Aroskar v. Union of India, 2019 SCC OnLine SC 441, decided on 29.03.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): A Division Bench comprising of Raghuvendra S. Rathore, Judicial Member and Satyawan Singh, Expert Member, emphasized the duty of the State towards compliance with relation to environmental laws.

The construction in question was raised without obtaining consent to establish the State’s new Legislative Assembly building from the Pollution Control Board, and Central Ground Water Authority. It was argued that obtaining environmental clearance was not required because the total built-up area was less than 20,000 sq mtrs.

But the fact that due to further construction, the area has been raised and now the total built-up area was more than 25,000 sq mtrs thereby making it as mandatory for the respondents to obtain environmental clearance for the same.

The Tribunal expressed its surprise with respect to the act of the respondents by stating that they should have taken steps for obtaining the consent for the environment clearance when the idea of the new construction was so proposed but the same was never done. The Tribunal also observed that in order to confine the construction up to 25,000 sq mtrs, the respondents deliberately initially raised the construction by keeping it within the range of 20,000 sq mtrs so that subsequent construction would not show that they exceeded the limit from the very beginning. The Tribunal pressed upon the fact that the respondents ought to have obtained environmental clearance the moment they felt the need for additional construction, which was now admittedly more than 25,000 sq mtrs. Moreover, compliance of law and the steps to be taken towards it was all the more necessary because the building was a State Legislative Assembly.

The Tribunal concluded by emphasizing the sincerity with which the respondents must have acted, and non-compliance of law by the authorities itself would set a wrong example especially when the matter was concerned with environmental law and they were duty bound towards it. [Vikrant Tongad v. Union of India, O.A No. 529 of 2016 (M. A. No. 988/2016), 13-09-2018]