Case BriefsSupreme Court

Supreme Court: In a case where a Project Proponent had adhered to the applicable legal framework for Environmental Clearance (EC) during the concerned period but has been left in the lurch due to changes in the EC regimes, the bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that such Project Proponent cannot be pushed to a precipice and be made to fall. The Court said that,

“A Project Proponent is not expected to anticipate the changes in Environmental Clearance (EC) regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending.”

Factual Background

The Project Proponent in the present case, had initially commenced construction on 14.5.2013 with a sanction plan of 15040.05 sq. mtrs., which, being lesser than the threshold limit of 20,000 sq. mtrs, did not require a prior EC. Thereafter, for the proposed expansion of the project, for total constructed area of 49,012 sq. mtrs., the Project Proponent approached the concerned authority on 7.11.2016 for issuance of “Proposed Development Certificate”, which is a prerequisite to apply for EC, and the said certificate was granted on 28.11.2016 for the purpose of obtaining the EC from the SEIAA. But at that stage, by virtue of the MoEFCC notification dated 9.12.2016, the concerned local authority was designated as the sanctioning authority for projects between 20,000 sq. mtrs. and 50,000 sq. mtrs. and accordingly under the changed regime the Project Proponent applied to Pimpri Chinchwad Municipal Corporation (PCMC) on 10.7.2017 and was sanctioned EC by the competent local authority, on 28.11.2017.

A Pune Resident challenged the construction and alleged that the Project Proponent had made construction without obtaining any EC. In this proceeding the NGT constituted a three Member Committee comprising the SEIAA – Maharashtra, the State PCB and the Municipal Commissioner, Pune. The Committee, after spot verification, in its Report dated 18.8.2020 noted that construction of total built up area of 22930.17 sq. mtrs. is already completed for Building Nos. A,E,B,D and the Club House.

The project of the appellant comprises six buildings of which three were constructed in full, and the super structure of the fourth building is completed and only the internal works remains to be done. In the fourth building, 40 out of the 64 apartments have already been sold.

The NGT observed that because of the invalidation of certain clauses in the 2016 notification, the EC obtained from the PCMC is unacceptable and accordingly rendered a finding that the Project Proponent had failed to obtain the valid EC. However, the NGT held that the construction already raised by the Project Proponent on the basis of EC issued by the PCMC as per the notification dated 9.12.2016should be protected.

Analysis

Holding that the Project Proponent was therefore, complying with the regime set out by the amended notification, the Court explained that when the Project Proponent initially wanted to apply for the EC it had obtained the requisite layout sanction for applying to the SEIAA. As such, it was operating well within the applicable procedure, prior to the amendment. After grant of such sanction, while the construction was underway, the amendment came about on 9.12.2016 whereby, the local authority such as the Municipal Corporation was made the competent authority to grant EC. In the changed circumstances, the Project Proponent necessarily had to apply to the PCMC as during the interregnum before the NGT’s judgment on 8.12.2017, SEIAA was not the competent authority to consider application for EC. The Project Proponent had obtained the EC from the competent authority of the relevant time i.e. the PCMC.

The Court also took note of the fact that the Committee constituted by the NGT to report on the building project did not underscore any major deviation but instead found that the Project Proponent had made substantial compliance by obtaining the EC from the competent local authority. Moreover, neither before the NGT or this Court, it was ever contended that appraisal done by the PCMC’s Environmental Cell was defective or any different from one done by SEIAA. Both processes are also similarly structured. The Court, hence, found that this may be the reason why the NGT in the impugned judgment itself protected the already made construction. However, the Project Proponent was restrained from making any further construction without obtaining clearance from the statutory EC and adhering to the environmental norms.

The Court, hence, held that the NGT rightly protected the already erected buildings.

“As the expert body exclusively occupying the environmental field, the NGT has assessed the factual circumstances to consciously lean towards protecting the already constructed structures. Nothing more need be added on this aspect.”

Applying the Doctrine of Legitimate Expectation, the Court explained that the Project Proponent can legitimately expect a certain degree of stability in the manner in which environmental regime is set and how the applications are processed. The actions of the authorities are expected to adhere to the prevalent norms only, without the element of uncertainty for the executed project.

“In the present matter the appellant has acted on the EC and made substantial investments. They cannot be pushed to a precipice and be made to fall. Doing so would be inequitable particularly when, the appellant has scrupulously adhered to the applicable legal framework during the concerned period. Moreover, third-party interests have also cropped up in the interregnum.”

The Court, hence, directed that the four constructed buildings are resultantly to be treated to be under a valid EC with all legal consequences. It was, however, made clear that if the Project Proponent wishes to construct the remaining buildings, they must secure fresh clearance from the competent authority, as per the currently applicable framework.

[Sai Baba Sales Pvt. Ltd. v. Union of India, 2021 SCC OnLine SC 1133, decided on 26.11.2021]


Counsels

For appellant: Senior Advocate Huzefa Ahmadi

For Original Applicant before NGT: Advocate Lonkar Nitin

For Ministry of Environment & Forest: Additional Solicitor General of India Aishwarya Bhati

For Government of Maharashtra: Advocate Rahul Chitnis

For the State Pollution Control Board: Advocate Mukesh Verma


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao*, Hemant Gupta and Ajay Rastogi, jj has directed the Ministry of Environment, Forest and Climate Change, Government of India to constitute an Expert Committee to examine whether segmentation is permissible for National Highway projects beyond a distance of 100 kms and, if permissible, under what circumstances.

Background

The said direction came in the case relating to the environmental clearance for expansion of National Highway 45-A between Villuppuram to Nagapattinam for a distance of 179.555 kms as a part of the Bharatmala Pariyojana project. Admittedly, no environmental impact assessment was undertaken. The National Highway Authority of India had challenged the Madras High Court decision holding that the environmental clearance for the said project was necessary.

Environmental clearance under the Notifications dated 14.09.2006 and 22.08.2013 is required only if the additional right of way or land acquisition is greater than 40 meters on existing alignments and 60 meters on realignments or bypasses. It was NHAI’s case that environmental clearance is not required as the additional right of way or land acquisition was not greater than the limits specified in the Notification even if the expansion of the National Highways is beyond 100 km. In view of the bifurcation of the National Highway 45-A into four packages and each package being less than 100 km, NHAI contended that the Notifications dated 14.09.2006 and 22.08.2013 are not applicable.

What does the Notification state?

As per Item 7 (f) to the Notification dated 22.08.2013, expansion of a National Highway project needs prior environmental clearance in case

(a) expansion of the National Highway project is greater than 100 km. and

(b) it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or bypasses.

If the project involves expansion of a National Highway greater than 100 km, prior environmental clearance would be required only if it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes.

A statutory rule or Notification is to be treated as a part of the statute. Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, are to be of the same effect as if they are contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. The principles of interpretation of subordinate legislation are applicable to the interpretation of statutory Notifications.

“If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law-giver.”

In the current case, there is no ambiguity or scope for two interpretations. Hence, adopting the golden rule of interpretation the Court that there is no requirement of prior environmental clearance for expansion of a National Highway project merely because the distance is greater than 100 km.

“It is a cardinal principle of interpretation that full effect has to be given to every word of the Notification . Interpreting the Notification dated 22.08.2013 to mean that every expansion of National Highway which is greater than 100 km requires prior environmental clearance would be making the other words in Item 7 (f) redundant and otiose.”

Segmentation of National Highway projects beyond a distance of 100 kms

The Court agreed with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications dated 14.09.2006 and 22.08.2013 and was hence, of the opinion that an expert committee should examine the permissibility of segregation.

“As the question of permissibility of the segmentation of a National Highway beyond a distance of 100 kms is a matter to be considered by experts, it would be necessary for a committee to be constituted by the Government of India to decide whether segmentation of a National Highway project beyond a distance of 100 kms is permissible. If it is permissible, the circumstances under which segmentation can be done also requires to be examined by the expert committee.”

Conclusion

  • There is no requirement for obtaining environmental clearances for NH 45-A Villuppuram-Nagapattinam Highway as land acquisition is not more than 40 meters on existing alignments and 60 meters on realignments or by passes.
  • NHAI has to strictly conform to the Notification dated 14.09.2006 as amended by the Notification dated 22.08.2013 in the matter of acquisition of land being restricted to 40 meters on the existing alignments and 60 meters on realignments.
  • Ministry of Environment, Forest and Climate Change, Government of India to constitute an Expert Committee to examine whether segmentation is permissible for National Highway projects beyond a distance of 100 kms and, if permissible, under what circumstances
  • NHAI has to fulfil the requirement of reafforestation in accordance with the existing legal regime. There is an obligation on the part of the Appellant to plant ten trees for each felled tree.

[National Highway Authority of India v. Pandarinathan Govindarajulu,  2021 SCC OnLine SC 28, decided on 19.01.2021]


*Justice L. Nageswara Rao has penned this judgment

Case BriefsSupreme Court

Supreme Court: Dealing with the question whether the Parliament was competent to enact the National Highways Act, 1956 and the National Highway Authority of India Act, 1988 for construction of new roads traversing through the open green-fields, the 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that

“… there is nothing in the Constitution which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway. Whereas, the provisions in the Constitution unambiguously indicate that the legislative as well as executive power regarding all matters concerning and connected with a highway to be designated as a national highway, vests in the Parliament and the laws to be made by it in that regard.”

The 1956 Act and the 1988 Act were made in reference to Entry 23 of List I of the Seventh Schedule.  The Court noticed that the fact that Entry 13 of List II bestows exclusive power upon the legislature of any State concerning subject “roads”, cannot be the basis to give restricted meaning to Entry 23 in List I, dealing with all matters concerning “national highways”.

“It is well-established position that if the law made by the Parliament is in respect of subject falling under Union List, then the incidental encroachment by the law under the State list, per se, would not render it invalid.  The doctrine of pith and substance is well-established in India. The doctrine is invoked upon ascertaining the true character of the legislation.”

Adverting to Article 248 of the Constitution that bestows legislative powers on the Parliament to make a law with respect to any matter not enumerated in the Concurrent List or the State List, the Court noticed that the expression “highways” as such, is not mentioned either in the State List or the Concurrent list. While making law on the subject falling under the Union List in terms of Entry 97 thereof, it is open to the Parliament to make law on any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.

It was further stated that the entries in the legislative lists are not sources of legislative powers, but are merely topics or fields in respect of which concerned legislative body is free to make a law. The entries must receive a liberal and expansive construction, reckoning the wide spirit thereof and not in a narrow pedantic sense.

“Entry 23 in List I refers generally to “highways” declared or to be declared by the Parliament as national highways and all matters connected therewith.  This empowers the Parliament to declare any stretch/section across any State as a highway for being designated as a national highway.  There is no indication in the Constitution to limit the exercise of that power of the Parliament only in respect of an existing “highway”.”

The Court further enunciated that whenever and wherever the question of legislative competence is raised, the test is whether the law enacted, examined as a whole, is substantially with respect to the particular topic of legislation falling under the concerned list.

“If the law made by the Parliament or the legislature of any State has a substantial and not merely a remote connection with the Entry under which it is made, there is nothing to preclude the concerned legislature to make law on all matters concerning the topic covered under the Union List or the State List, as the case may be.”

The Court also highlighted Central Government’s obligations under Part IV of the Constitution for securing a social order and promotion of welfare of the people in the concerned region, to provide them adequate means of livelihood, distribute material resources as best to subserve the common good, create new opportunities, so as to empower the people of that area including provisioning new economic opportunities in the area through which the national highway would pass and the country’s economy as a whole.

“The availability of a highway in any part of the State paves way for sustainable development and for overall enhancement of human well-being including to facilitate the habitants thereat to enjoy a decent quality of life, creation of assets (due to natural increase in market value of their properties) and to fulfil their aspirations of good life by provisioning access to newer and present-day opportunities.”

Hence, having said that the Parliament has exclusive legislative competence to make a law in respect of national highways and all matters connected therewith, which includes declaring any stretch/section within the State (not being existing roads/highways) as a national highway, it must follow that the Central Government alone has the executive powers to construct/build a new national highway in any State and to issue directions to the Government of any State for carrying out the purposes of the 1956 Act.

[Project Director, Project Implementation Unit v. P.V. Krishnamoorthy,  2020 SCC OnLine SC 1005, decided on 08.12.2020]


Justice AM Khanwilkar has penned this judgment. Read more about him here.

Counsels heard: Solicitor General of India Tushra Mehta, Senior Counsels S. Nagamuthu, Sanjay Parikh, Nikhil Nayyar, Anita Shenoy, Counsels Kabilan Manoharan advocate, P. Soma Sundaram, T.V.S. Raghavendra Sreyas and  S. Thananjayan

Also read: Prior environmental clearance required before commencement of actual construction of a National Highway, not at the planning stage: SC

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that it is not necessary for the Central Government or NHAI to apply for prior environmental/forest clearances or permissions before issuing notification under Section 2(2) declaring the stretch/section to be a national highway or Section 3A of the National Highways Act, 1956 to express intention to acquire land for the purpose of building, maintenance, management or operation of a national highway, as the case may be.

“Environmental/forest clearance is always site specific and, therefore, until the site is identified for construction of national highways manifested vide Section 3A notification, the question of making any application for permission under the environmental/forest laws would not arise.”

Scope of Central Government’s power under Section 2(2) of the National Highways Act, 1956

Explaining the scope of Section 2(2) of the National Highways Act, 1956, the Court said that the power bestowed upon the Central Government under Section 2(2) of the 1956 Act is not constricted or circumscribed by any other inhibition, such as to declare only an existing road or highway within the State as a national highway.  The requirement of a national highway within the country as a whole and State-wise, in particular, is to alleviate evolving socio-economic dynamics, for which such a wide power has been bestowed upon the Central Government. The Central Government is obliged to do so to facilitate it to discharge its obligations under Part IV of the Constitution.

“There is nothing in the Constitution of India or for that matter, the 1956 Act to limit that power of the Central Government only in respect of existing roads/highways within the State. To say so would be counter¬productive and would entail in a piquant situation that the Central   Government cannot effectively discharge its obligations under Part IV of the Constitution unto the remote inaccessible parts of the country until the concerned State Government constructs a road/highway within the State. (…) By its very nomenclature, a national highway is to link the entire country and provide  access to all in every remote corner of the country for interaction and to promote commerce and trade, employment and education including health related services.”

Hence, the Central Government is fully competent to notify “any land” (not necessarily an existing road/highway) for acquisition, to construct a highway to be a national highway.

Prior permission before issuing notification under Section 3A of the 1956 Act

The Court noticed that neither the 1956 Act, the Rules framed thereunder nor the National Highway Authority of India Act, 1988 and the Rules made thereunder specify any express condition requiring Central Government to obtain prior environmental/forest clearance before issuing notification under Section 2(2) declaring the stretch/section to be a national highway or Section 3A of the 1956 Act to express intention to acquire land for the purpose of building, maintenance, management or operation of a national highway, as the case may be.

“It is not necessary for the Central Government or for that matter, NHAI, to apply for prior environmental/forest clearances or permissions, as the case may be, at the stage of planning or taking an in­principle decision to formalize the Project of constructing a new national highway manifested in notification under Section 2(2), including until the stage of issuing notification under Section 3A of the 1956 Act.”

Even the notification issued by the MoEF dated 14.9.2006, does not constrict the power of Central Government to issue notification under Section 2(2) or Section 3A of the 1956 Act.

The prior environmental clearance in terms of 2006 notification issued under Section 3 of the Environment (Protection) Act, 1986 Act read with Rule 5 of the Environment (Protection) Rules, 1986, is required to be taken before commencement of the “actual construction or building work” of the national highway by the executing agency (NHAI). That will happen only after the acquisition proceedings are taken to its logical end until the land finally vests in the NHAI or is entrusted to it by the Central Government for building/management of the national highway. The land would vest in the Central Government under the 1956 Act only after publication of declaration of acquisition under Section 3D. Until then, the question of Central Government vesting it in favour of NHAI under Section 11 of the 1988 Act would not arise. However, until the vesting of the land, the Central Government and its authorised officer can undertake surveys of the notified lands by entering upon it in terms of Section 3B of the Act.

“Pertinently, the activities predicated in Section 3B are of exploration for verifying the feasibility and viability of land for construction of a national highway. These are one-time activities and not in the nature of exploitation of the land for continuous commercial/industrial activities as such. There is remote possibility of irretrievable wide-spread environmental impact due to carrying out activities referred to in Section 3B for assessing the worthiness of the land for using it as a national highway. Thus, the question of applying notification of 2006 at this stage does not arise, much less obligate the Central Government to follow directives thereunder.”

Deemed lapsing

The Court noticed that it is essential to issue a declaration under Section 3D of the 1956 Act within a period of one year from the date of publication of the notification under Section 3A in respect of the notified land, failing which notification under Section 3A ceases to have any effect.  However, time spent for obtaining environmental clearance or permission under the forest laws has not been explicitly excluded from the period of one year to be reckoned under Section 3D(3) of the Act. The extension of time or so to say suspension of time is only in respect of period during which the action of the proceedings to be taken in pursuance of notification under Section 3A(1) is stayed by an order of Court.

Noticing that there is no express provision in the 1956 Act, which excludes the time spent by the Central Government or the executing agency in obtaining prior environmental clearance or permission under forest laws, as the case may be, the Court directed that the dictum in Karnataka Industrial Areas Development Board vs. C. Kenchappa, (2006) 6 SCC 371, shall operate as a stay by an order of the Court for the purposes of Section 3D(3) in respect of all projects under the 1956 Act, in particular for excluding the time spent after issue of Section 3A notification, in obtaining the environmental clearance as well as for permissions under the forest laws.

“Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof.”

[Project Director, Project Implementation Unit v. P.V. Krishnamoorthy, 2020 SCC OnLine SC 1005, decided on 08.12.2020]


*Justice AM Khanwilkar has penned this judgment. Read more about him here.

Counsels heard: Solicitor General of India Tushra Mehta, Senior Counsels S. Nagamuthu, Sanjay Parikh, Nikhil Nayyar, Anita Shenoy, Counsels Kabilan Manoharan advocate, P. Soma Sundaram, T.V.S. Raghavendra Sreyas and  S. Thananjayan

Also read: Centre versus State| Who has the power to make law declaring any land within a State as a national highway? Supreme Court answers

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]