Jharkhand High Court: Rajesh Shankar J. refused to interfere with the detailed NGT order only for the purpose of providing a shortcut method of dealing with the violation of cases of the members of the petitioner.
The facts of the case are such that Respondent 1 vide notification dated 14.09.2006 formulated the Environment Impact Assessment Notification, 2006 (i.e. EIA Notification, 2006) which mandates for obtaining prior Environmental Clearance i.e. EC from the concerned regulatory authority to initiate construction activities for the projects falling under the Schedule of EIA Notification, 2006. On 14.03.2017, respondent 1 issued notification to deal with the cases of alleged violation of the environmental laws and thus a process was established to deter violation of provisions of EIA Notification, 2006 and be compensated by restoring the ante-original state.
A Public Interest Litigation (PIL) challenging the validity of the said notification 2017 was filed before the High Court of Madras which was stayed, later vacated and upheld. The notification was later amended and the power for appraisal of category ‘B’ proposals which are under violation of EIA Notification, 2006 were delegated to the States. The respondent 1 issued another notification dated 15.03.2018 for implementation of the notification which was assailed before NGT for non-implementation. The Tribunal issued several directions to the State to forthwith stop all the ongoing construction activities undertaken without obtaining prior EC. Aggrieved by this, the petitioner is a member of the Confederation of Real Estate Developers’ Association of India (CREDAI) which is the apex body of private real estate developers comprising of the real estate developers of the State of Jharkhand filed the instant petition.
Counsel for the petitioner Abhishek Manu Singhvi submitted that the action of the respondent 3 in directing the members of the petitioner to stop construction activities without any opportunity of hearing is in violation of the principles of natural justice. It was also submitted that the members of the petitioner have all requisite documents for grant of EC, however the same was not granted due to non-existence of SEIAA in the State of Jharkhand.
Mr. Singhvi also submitted that that the impugned orders prohibiting construction activities without obtaining prior EC has brought the entire real estate sector to a grinding halt which was just getting back to normalcy post first wave of Covid-19 pandemic and as a result of stoppage of construction activities, the livelihood of around 3 lakhs construction workers and over 15 lakhs dependent members are at stake and over 200 industries in the MSME Sector have been severely affected. It was also submitted that that the members of the petitioner are ready and willing to get their projects assessed by the respondent-SEIAA, Jharkhand for any mitigating condition including payment of compensation that may be assessed in true letter and spirit while processing and granting EC for their projects.
Counsel for the respondents submitted that as per EIA Notification, 2006, in the absence of SEIAA/SEAC in the State/UTs, the proposal was to be appraised by the EAC at central level. Therefore, the plea of the petitioner that the SEIAA, Jharkhand was non-functional from 09.11.2019 to 03.11.2020 due to which many project proponents could not obtain prior EC is baseless and not tenable in the eye of law. It was further submitted that the members of the petitioner started construction work without obtaining mandatory EC required under EIA Notification, 2006 which comes under violation category and presently there is no mechanism to deal with such violation cases. It was also pointed out before the Court that if the petitioners were aggrieved by the NGT order, the same should have been challenged before Supreme Court.
It is observed that respondent 2, in exercise of the power conferred by section 3(2)(v)(1) of the Environment (Protection) Act, 1986, r/w Rule 5 (3) (d) of the Environment (Protection) Rules, 1986, issued notification imposing certain restrictions and prohibitions on new projects or expansion or modernization of existing projects or activities based on their potential environmental impacts unless prior environmental clearance has been accorded in accordance with the objectives of National Environment Policy.
The Court observed that that the petitioner cannot claim the benefit of the fact that the SEIAA, Jharkhand was not functioning for certain period, since its members could have applied before the EAC at Central level for grant of EC in view of clause-4 of the EIA Notification, 2006.
The Court further observed that there were various notices mentioning that if the noticees have not obtained environmental clearance, they must stop the construction activities immediately and submit the environmental clearance, failing which action will be initiated under the provisions of the Jharkhand Municipal Act, 2011. It was also observed that if the petitioner or any of its members found itself aggrieved by the order of the NGT, it could have filed appeal against the said order for getting appropriate relief; however it did not choose to challenge the same. As such, challenge to the impugned notices on the ground of violation of the principles of natural justice, is not sustainable.
It is a trite law that a writ cannot be issued on the ground of violation of principles of natural justice if only one conclusion is possible in a given situation. Every violation of a facet of natural justice may not lead to a conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”.
The National Green Tribunal Act, 2010 (in short “the Act, 2010”) has been enacted for the establishment of National Green Tribunal for effective and expeditious disposal of cases relating to environmental protection and conservation of forest and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.
The Court held that “since the NGT is a specialized body to look into the environmental affairs which has passed the order to deal with the present issue applying the principle of sustainable development and the precautionary principle having been empowered in view of Section 22 of the Act, 2010, the Government of Jharkhand must ensure that EIA is undertaken, management plan is prepared for the projects which were started in violation of EIA Notification, 2006, compensation is duly assessed and recovery of the same is made from the defaulter as well as in the meantime the ongoing construction must be stopped.”
In view of the above, writ petition was dismissed.
[Confederation of Real Estate Developers Association of India v. UOI, 2021 SCC OnLine Jhar 370, decided on 13-05-2021]
Arunima Bose, Editorial Assistant has put this report together
Counsel For the Petitioner: Mr. Abhishek Manu Singhavi, Mr. Keshav Mohan and Mr. N.K. Pasari
Counsel For the Respondent 1: Mr. Rajiv Sinha
Counsel For the Respondent 2 and 3: Mrs. Surabhi
Counsel For the Respondent 4: Mr. Bhanu Kumar