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C/WPPIL/21/2013 CAV JUDGEMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 21 of 2013 With SPECIAL CIVIL APPLICATION NO. 2621 of 2013 With CIVIL APPLICATION NO. 9694 of 2013 In WRIT PETITION (PIL) NO. 21 of 2013 With CIVIL APPLICATION NO. 3558 of 2013 In SPECIAL CIVIL APPLICATION NO. 2621 of 2013 With CIVIL APPLICATION NO. 4639 of 2013 In SPECIAL CIVIL APPLICATION NO. 2621 of 2013 With CIVIL APPLICATION NO. 4823 of 2013 In CIVIL APPLICATION NO. 3558 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
Page 1 of 1861 of 189 C/WPPIL/21/2013 CAV JUDGEMENT 5 Whether it is to be circulated to the civil judge ?
================================================================ GAJUBHA (GAJENDRASINH)BHIMAJI JADEJA & 3....Applicant(s) Versus UNION OF INDIA THRO JOINT SECRETARY & 20....Opponent(s) ================================================================ Appearance:
WRIT PETITION (PIL) NO.21 of 2013:
MR AJ YAGNIK, ADVOCATE for the Applicant(s) No. 1 - 4 MR PERCY KAVINA, SR.ADVOCATE with MR ABHISHEK MEHTA for M/S TRIVEDI & GUPTA, ADVOCATE for the Opponent(s) No. 12 MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 6 MR MIHIR JOSHI, SR.ADVOCATE with MR SHAMIK S BHATT, ADVOCATE for the Opponent(s) No. 10 , 14, 15 , 17 , 19 MR MIHIR THAKORE, SR.ADVOCATE with MS AMRITA M THAKORE, ADVOCATE for the Opponent(s) No. 11 , 16 , 18 , 21 MS DHARMISHTA RAVAL, ADVOCATE for the Opponent(s) No. 7 NOTICE SERVED BY DS for the Opponent(s) No. 1 - 5 , 8 - 9 , 13 , 20 MR DUSHYANT DAVE, SR.ADVOCATE with MR SANDEEP SINGHI for SINGHI & CO, ADVOCATE for the Opponent(s) No. 8 MR PARTH BHATT, ASSISTANT GOVERNMENT PLEADER.
WRIT PETITION (PIL) NO.2621 of 2013:
MR GOPAL SUBRAMANIAM AND MR.MIHIR JOSHI, SR.ADVOCATES with MS SHALLY BHASIN AND MR SALIL THAKORE, ADVOCATES for the Applicants. MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 1 MR SANDEEP SINGHI for SINGHI & CO, ADVOCATE for the Opponent. =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 13/01/2014 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) Page 2 of 186 2 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Since common questions of law and fact are involved in both the captioned petitions, those were heard together and are being disposed of by this common judgment and order.
The petitioners of Writ Petition (PIL) No.21 of 2013, residing at village Navinal, Mundra Port and Special Economic Zone, Kutch, have prayed for the following reliefs in public interest :
"(A) To direct respondents and respondent nos.10 to 21 in particular to immediately stop further development of the units and business operations in particular from their respective units situated within respondent no.8 Mundra Port and Special Economic Zone till environmental clearance is granted by respondent Ministry of Environment and Forests in favour of respondent no.8 Mundra Port and Special Economic Zone;
(B) To direct respondents and respondent nos.10 to 21 in particular to completely dismantle and demolish the construction put up on their respective units and remove all and entire development upon the same to the extent of status quo ante;
(BB) To direct respondent nos.1,2,3 and 4 and respondent no.5 to take over complete control, administration and supervision of respondent no.8 Mundra Port and Special Economic Zone, looking to the grave violations of Environmental Impact Assessment Notification, 2006;
(C) To direct the respondent nos.1 and 2 to take all civil, criminal and corrective action against respondent nos.8, 10 to 21 for violating Environmental Impact Assessment Notification, 2006;
(CC) To direct respondent nos.1, 3 and 4 to consider permanently refusing grant of environmental clearance to respondent no.8 Mundra Port and Special Economic Zone for grave violations of Environmental Impact Assessment Notification, 2006 in the context of subject Page 3 of 186 3 of 189 C/WPPIL/21/2013 CAV JUDGEMENT matter of the present petition;
(D) To direct respondent nos.1 and 2 to constitute an independent team of expert to decide the extent of collusion and involvement of statutory, public and Government authorities in assisting respondent nos.8, 10 to 21 in violating the Environmental Impact Assessment Notification, 2006 and thereby develop the land in question and put up construction thereupon and be further pleased to direct taking of civil, criminal and departmental action against erring officers;
(E) To direct the respondents and particularly respondent nos.5, 7 and 9 to prepare panchnama of the land allotted to respondent nos.10 to 21 and extent of development of the very land and construction thereupon so far put up by respondent nos.10 to 21 and place the same on record;
(F) During pendency and/or final disposal of the present petition be pleased to direct the respondents and respondent nos.8, 10 to 21 in particular to immediately stop further development of the units and business operations from respective units and file an undertaking before this Hon'ble Court in this regard AND be further pleased to direct respondent no.5 Development Commissioner, Mundra Port and Special Economic Zone to ensure that no further development in the respective units take place and business operations are undertaken in any manner whatsoever;
(FF) During the pendency and/or final disposal of the present petition to direct respondent nos.1,2,3 and 4 and respondent no.5 to take over complete control, administration and supervision of respondent no.8 Mundra Port and Special Economic Zone, looking to the grave violations of Environmental Impact Assessment Notification, 2006;
(G) To award the costs of this petition;
(H) To pass such other and further prayer/s in the interest of justice be granted."
The petitioner of Special Civil Application No.2621 of Page 4 of 186 4 of 189 C/WPPIL/21/2013 CAV JUDGEMENT 2013, an industrial unit engaged in the manufacturing of Advanced Turbine & Generators and Heat Exchanger Equipments for Power Plants at the Mundra Special Economic Zone, has prayed for the following reliefs :
"(i) Issue a writ, order or direction declaring that since APSEZ i.e. Respondent No.2 has obtained a deemed clearance under Clause 8(iii) of EIA Notification, 2006, there is no impediment against the petitioners in continuing to establish their respective projects in land situated in Mundra SEZ, being part of Revenue Survey No.295/1 and part of Revenue Survey No.225 of Mouje Village Siracha and Navinal, Taluka Mundra, District Kutch, Gujarat, in view of the fact that the petitioners have already obtained statutory clearances inter alia from Gujarat Pollution Control Board;
(ii) Issue a writ of mandamus commanding the respondent to forbear from interfering in the remaining construction and completion of the separate projects of the petitioners at their respective lands in the Mundra SEZ;
(iii) That pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to allow the petitioners to recommence their construction activities on their respective lands at the Mundra SEZ in order to complete their projects;
(iv) For ad-interim reliefs in terms of prayer (iii) above;
(v) Pass any other appropriate order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
The case made out by the petitioners of Writ Petition (PIL) No.21 of 2013 may be summarised as under :
The petitioners are residents of village Navinal situated within the Mundra Port and Special Economic Zone territory Page 5 of 186 5 of 189 C/WPPIL/21/2013 CAV JUDGEMENT (for short, 'the MPSEZ'). They are all farmers and earn their livelihood through agricultural operations.
It is the case of the petitioners that without obtaining a mandatory prior environmental clearance from the Ministry of Environment and Forests, Union of India, as required under the Environmental Impact Assessment Notification, 2006, the respondent no.8 MPSEZ owned by the Adani Group at Mundra, District Kutch, has conferred leasehold rights in favour of the respondent nos.10 to 21, and on the strength of such leasehold rights conferred by the MPSEZ as the lessor in favour of the respondent nos.10 to 21 as the lessees, the respondent nos.10 to 21 have developed their respective plots of land and setup their industrial units.
It is the case of the petitioners that the respondent nos.10 to 21 have been operating their units since 2008 in the absence of the environmental clearance in favour of the MPSEZ.
It is the case of the petitioners that Entry 7(c) in the Schedule attached with the environmental clearance under the Environmental Impact Assessment Notification, 2006 (for short, 'EIA Notification') issued under Rule 5 of the Environment (Protection) Rules, 1986 and Section 3 of the Environment (Protection) Act, 1986, provides a list of projects which requires prior environmental clearance before making them operational.
According to the petitioners, the respondent no.8 MPSEZ does not have the prior environmental clearance to setup a Page 6 of 186 6 of 189 C/WPPIL/21/2013 CAV JUDGEMENT port based multipurpose special economic zone at Mundra and until the clearance is granted by the respondent no.1, the Ministry of Environment and Forests, no developmental activities including that of setting up of infrastructural facilities to provide basic amenities and facilities to the unit holders within SEZ can take place.
According to the petitioners, such issue was raised in the past by way of a Writ Petition (PIL) No.194 of 2011, decided by this very Bench vide judgment and order dated 9th May 2012, by which this Court held that, so long as the environmental clearance is not granted by the Central Government in favour of the MPSEZ for creation of infrastructural facilities on the land so allotted and consequent to such permission such facilities have been actually created by the allottee, the lessor cannot lease out the right of enjoyment of the infrastructural facilities to its lessee.
According to the petitioners, in Writ Petition (PIL) No.194 of 2011 only two units were joined as the party respondents, namely, (1) Alstom Bharat Forge Power Limited, and (2) Kalyani Alstom Power Limited. The other units, namely, the respondent nos.10 to 21 in the present petition were not the party respondents in Writ Petition (PIL) No.194 of 2011.
According to the petitioners, since this Court has already held while deciding the Writ Petition (PIL) No.194 of 2011 that the MPSEZ could not have lawfully leased out the right of enjoyment of the infrastructural facilities to its lessee, namely, (1) Alstom Bharat Forge Power Limited, and (2) Kalyani Alstom Power Limited, i.e. the respondent nos.10 and 11 of Writ Page 7 of 186 7 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Petition (PIL) No.194 of 2011, the same principle would apply even in the cases of the present respondent nos.10 to 21.
However, according to the petitioners, although there is a clear pronouncement of this Court about the right of creation of infrastructural facilities over the land allotted by the MPSEZ prior to the grant of environmental clearance, the respondent nos.10 to 21 have continued to operate their respective units in flagrant violation and disregard of the Environmental Impact Assessment Notification, 2006 as well as the dictum of law laid down by this Court in Writ Petition (PIL) No.194 of 2011.
It has been averred in the petition that the public hearing for grant of environmental clearance in favour of the MPSEZ was held on 5th September 2010. At the same time, the Ministry of Environment and Forests, Government of India, has issued a show-cause notice to the MPSEZ in connection with the violation of the provisions of the CRZ Notification, 1991. Till this date, the mandatory prior environmental clearance has not been granted by the Ministry of Environment and Forests under the EIA Notification and, therefore, no developmental activities can take place within the SEZ.
It is stated in the petition that the petitioners herein learnt about the judgment rendered by this Court in Writ Petition (PIL) No.194 of 2011, wherein only two units were party respondents, namely, Alstom Bharat Forge Power Limited and Kalyani Alstom Power Limited. At a later stage, the petitioners could find out that there are other units also operating within the SEZ, i.e. the respondent nos.10 to 21, without any environmental clearance granted by the Union in Page 8 of 186 8 of 189 C/WPPIL/21/2013 CAV JUDGEMENT favour of the MPSEZ.
In such circumstances, the petitioners thought fit to file this petition in public interest, praying for the reliefs which have been aforenoted.
On notice being issued to the respective respondents, they have appeared and opposed this petition.
I. Stance of the Respondent No.8 - MPSEZ :
According to the respondent no.8, the petitions deserve to be rejected on the ground of suppression of material facts. The petitioners are guilty of projecting a false impression as if nothing has happened after the judgment and order dated 9th May 2012 was pronounced by this Court in Writ Petition (PIL) No.194 of 2011.
According to the respondent no.8, the Expert Appraisal Committee (EAC), constituted by the Ministry of Environment and Forests, considered the issue of grant of environmental clearance in its meetings held on 16th-17th April 2012, 4th-5th June 2012 and 9th-10th July 2012 respectively. The EAC recommended to the Ministry of Environment and Forests for grant of environmental clearance subject to certain terms and conditions.
In such circumstances referred to above, the following has been averred in the affidavit-in-reply, which is as under :
"5. I state and submit that the respondent no.8 had Page 9 of 186 9 of 189 C/WPPIL/21/2013 CAV JUDGEMENT submitted an application dated 15.12.2008 to MoEF-the respondent no.1 for grant of Environmental and CRZ clearance to the respondent no.8 for its project, namely, SEZ, as required under the said notification. I state that pursuant to the preparation of Environmental Impact Assessment (EIA) study including Environment Management Plan, a public hearing for the project was conducted on 5.10.2010. Subsequent to the public hearing, the EAC-respondent no.3, constituted by MoEF, in its meeting held on 16th-17th April 2012 recommended the proposal for clearance of SEZ project after receipt of the information as stipulated during the said meeting. The respondent no.8 submitted the requisite details to MoEF as sought for in the meeting of EAC.
6. In the meantime, this Hon'ble Court vide its judgment and order dated 9.5.2012 passed in Writ Petition (PIL) No.194 of 2011, inter alia, directed the respondent nos.10 and 11 to the said writ petition not to proceed ahead in implementation of their project and not to undertake any further construction work till the respondent no.8 is granted environmental clearance.
7. Subsequent to the passing of the aforesaid judgment and order dated 9.5.2012 by this Hon'ble Court, after due compliance with the minutes of the meeting dated 16th- 17th April 2012 by respondent no.8, the matter was further considered by the EAC at its meeting on 4th-5th June 2012. EAC in its meeting held on 4th-5th June 2012 recommended the proposal of the respondent no.8 for environmental and CRZ clearance with the conditions as stipulated in the said meeting of EAC held on 4th-5th June 2012. The said minutes are available on the official website of MoEF which is within public domain and is a public document. Thereafter, EAC in its meeting held on 9th-10th July 2012, inter alia, corrected the minutes of the meeting held on 4th-5th June 2012 by reading the notified area as 8481.2784 ha. instead of 5920 ha. mentioned in the minutes of the meeting held on 4th-5th June 2012. Even the said minutes of the meeting held on 9th-10th July 2012 is available on the official website of MoEF which is within public domain and is a public document.
8. In terms of paragraph 8(i) of the said notification, the Page 10 of 186 10 of 189 C/WPPIL/21/2013 CAV JUDGEMENT MoEF was required to consider the recommendations of EAC and convey its decision to the respondent no.8 within 45 days of the receipt of such recommendations of EAC. No decision of MoEF was communicated to the respondent no.8 within 45 days of the receipt of the aforesaid recommendations of EAC. MoEF, in terms of paragraph 8(ii) of the said notification, has neither disagreed with the recommendations of EAC nor has requested EAC for its reconsideration and no such intimation in this respect has been received by the respondent no.8. As no decision of MoEF was communicated to the respondent no.8 within 45 days of the receipt of the recommendations of EAC, the respondent no.8, in terms of paragraph 8(iii) of the said notification, proceeded that the environment/CRZ clearance sought for has been granted by MoEF in terms of the final recommendations of EAC dated 4th-5th June 2012 and corrections made on 9th-10th July 2012.
9. At this juncture, it would be material to place on record the guidelines dated 29.4.2009 issued by MoEF for time bound issue of environmental clearances. The said guidelines were issued to remove the general perception that there are delays in processing of the proposals after their recommendations by EAC. Under the said guidelines, necessary instructions were issued that final view for environmental clearance is required to be taken within 15 days of the recommendations of EAC and that the environmental clearance thereafter would be displayed on MoEF's website immediately. The respondent no.8 based on the said notification and the guidelines dated 29.4.2009 proceeded that it has been granted necessary environmental/CRZ clearance in terms of final recommendations of EAC dated 4th-5th June 2012 and corrections made on 9th-10th July 2012.
10. Continuing with the sequence of events, I state and submit that one of the terms of the environmental/CRZ clearance granted by MoEF to the respondent no.8, pursuant to paragraph 8(iii) of the said notification, which is evident from the minutes of the meeting of EAC held on 4th-5th June 2012, stipulated that there shall be no allotment of plot in CRZ area to industries except the port and harbor and the activities which require foreshore facilities. In order to ensure compliance of the terms of the said environmental/CRZ clearance granted Page 11 of 186 11 of 189 C/WPPIL/21/2013 CAV JUDGEMENT to the respondent no.8, MoEF addressed letter dated 26.10.2012 to Gujarat Coastal Zone Management Authority (GCZMA) seeking details about the factual position about the SEZ area falling outside CRZ area.
11. The respondent no.8 vide its letter dated 29.10.2012 and 1.1.2013 submitted the requisite details, as sought for by MoEF vide its letter dated 26.10.2012, to GCZMA. The respondent no.8 through the said letters once again reiterated that it will carry out only the permissible activities in the CRZ area as per the CRZ notification as applicable. Government of Gujarat, Forests and Environment Department through Member Secretary, GCZMA vide its letter dated 9.1.2013 provided necessary details to MoEF as sought for by MoEF vide its letter dated 26.10.2012.
12. In light of the aforesaid facts, I state and submit that the respondent no.8 has been granted requisite environmental/CRZ clearance for its SEZ and that the judgment and order dated 9.5.2012 passed by this Hon'ble Court would not be applicable as sought to be contended by the petitioners in their petition. I state and submit that the petitioners have suppressed the EAC recommendations dated 4th-5th June 2012 and 9th-10th July 2012 though the said documents are within public domain. In the circumstances, I submit that the petition is required to be dismissed with exemplary cost.
13. Without prejudice to the aforesaid, I state and submit that the authorities have not considered that there is any bar either under the said notification or otherwise for an individual unit, being setup within the SEZ, to operate, even if it has obtained requisite environmental clearance and/or consent/authorisation from the Pollution Control Board, till the time the SEZ is granted environmental clearance. I submit that it is not even the case of MoEF that any individual unit cannot operate within SEZ, though having requisite environmental clearance and/or consent from the Pollution Control Board, till the time SEZ is granted environmental clearance. The same would also be evident from the stand of MoEF taken before this Hon'ble Court during the course of hearing of Writ Petition (PIL) No.194 of 2011. On the contrary, MoEF has granted environmental clearances to the individual unit/s to be setup in the SEZ though the environmental Page 12 of 186 12 of 189 C/WPPIL/21/2013 CAV JUDGEMENT clearance for the said SEZ was pending before it. The same would be evident in the case of Dahej SEZ, near Bharuch, Gujarat, developed by Gujarat Industrial Development Corporation (GIDC). One of the units within the Dahej SEZ, namely, M/s.Indofil Chemicals Company was granted environmental clearance by MoEF on 19.8.2008 while MoEF had granted environmental clearance for Dahej SEZ to GIDC only on 17.3.2010 during which time it is learnt that the aforesaid unit was carrying out its manufacturing activities. From the aforesaid, it appears that there may be several other such environmental clearances which may have been granted by MoEF. The respondent no.8 is not aware of the same, and that the MoEF would be in a better position to clarify the position in this regard.
14. I state and submit that the respondent nos.10 to 21 have setup or are in the process of setting up the units or have proposed to setup their units within the SEZ of the respondent no.8 pursuant to the relevant permissions being granted to them by the respondent no.5 under the provisions of the Special Economic Zone Act, 2005 and the rules framed thereunder. The said units would be required to obtain necessary consent/clearance from the appropriate authority based upon the nature of their activities. The only relief for an individual unit, which requires environmental clearance for its project under the said notification, is that the said individual unit would be exempted from public hearing in cases where the SEZ as a whole has undergone public hearing. I submit that the appropriate authorities would not have granted consents and/or clearances to the individual units if there would have been any bar to give such consent and/or clearance in the absence of environmental clearance being granted to SEZ. In light of the aforesaid, I submit that the present petition is not maintainable and is liable to be dismissed. Even otherwise, the present petition is not maintainable in view of the provisions of National Green Tribunal Act, 2010 read with order dated 9.8.2012 passed by the Hon'ble Supreme Court of India in Writ Petition (C) No.50 of 1998.
15. At this juncture, it is pertinent to mention that the port facility which is setup by the respondent no.8 and in operation, pursuant to environmental/CRZ clearances granted to it earlier by MoEF, is not the infrastructure Page 13 of 186 13 of 189 C/WPPIL/21/2013 CAV JUDGEMENT facility provided for or covered under the environmental/CRZ clearance applied for and granted by MoEF for the SEZ of the respondent no.8."
Thus, from the aforenoted stance of the respondent no.8
- MPSEZ, it is evident that it has pleaded in its defence the deemed environmental clearance in terms of clause 8 of the Environmental Impact Assessment Notification, 2006. Therefore, according to the respondent no.8 - MPSEZ, the position has completely changed on grant of the deemed environmental clearance, which was not the position when this Court decided the Writ Petition (PIL) No.194 of 2011.
In such circumstances referred to above, according to the respondent no.8 - MPSEZ, the Writ Petition (PIL) No.21 of 2013 need not be entertained and should be rejected only on the ground that in view of the deemed environmental clearance the respondent nos.10 to 21 can operate their respective units within the Special Economic Zone.
II. Stance of the Respondent Nos.10 to 21 :
By and large the stance of the respondent nos.10 to 21, i.e. the unit holders, is the same as that adopted by the respondent no.8 - MPSEZ. In addition to the grant of the deemed environmental clearance, the stance of the respective unit holders is that they are operating within the SEZ since 2008 and, by now, they have invested crores of rupees in the development of their projects.
According to the respondent nos.10 to 21, the provisions Page 14 of 186 14 of 189 C/WPPIL/21/2013 CAV JUDGEMENT of the EIA Notification make it abundantly clear that the environmental clearance is required to be obtained by only those projects which are listed in the Schedule thereto and not otherwise. According to them, if a SEZ does not get an environmental clearance, that by itself would not be a bar for setting up of an industrial unit inside the SEZ if the unit itself has the necessary environmental clearance for its project.
The sum and substance of the stance of the respondent nos.10 to 21 is that each one of them have obtained the necessary permission to setup their units from the Gujarat Pollution Control Board under the provisions of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.
All the units operating within the SEZ have received the consent and authorisation under the provisions of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Hazardous Waste (Management, Handling and Transboundry Movement) Rules, 2008 for the use of outlets and discharge of trade effluents due to operation of the plant.
It is also the stance of the unit holders that under Section 14 of the National Green Tribunal Act, 2010, it is the tribunal alone which has the jurisdiction to decide cases of the present nature where a substantial question relating to environment is raised.
The issues raised in the present petitions are directly Page 15 of 186 15 of 189 C/WPPIL/21/2013 CAV JUDGEMENT related to the Notification dated 14th September 2006 issued under the provisions of the Environment (Protection) Act, 1986. In such circumstances, it is the National Green Tribunal alone which would have the jurisdiction to try and entertain the issues raised in the present petitions. Thus, what has been pleaded in defence of these petitions is the alternative remedy available to the petitioners.
It is also the stance of the respondent nos.10 to 21 that the petitions should not be entertained on the ground of delay and laches. According to them, the units are in operation past almost more than five years and the petition has been filed in the year 2013. Such being the position, the principle of delay and laches would also be applicable to the petition filed in public interest.
In the circumstances referred to above, the respondent nos.10 to 21 have prayed that there being no merit in the Writ Petition (PIL) No.21 of 2013, the same deserves to be rejected.
III. Stance of the Respondent no.5 - Development Commissioner, MPSEZ :
The Development Commissioner, in its affidavit-in-reply has made the following averments :
"3. In the background of the aforesaid facts and circumstances, I state and submit that the preamble of the Special Economic Zones Act, 2005, states that, "an Act to provide for the establishment, development and management of the Special Economic Zones for the Page 16 of 186 16 of 189 C/WPPIL/21/2013 CAV JUDGEMENT promotion of exports and for matters connected therewith or incidental thereto". In the background of the aforesaid facts and circumstances, the provisions contained in Chapter IV of the Act, enumerates the appointment and functions of the Development Commissioner. To achieve the object and legislative policy, the speedy development of SEZs and promotion of exports from such SEZs are the essence for achieving the object behind the legislation. In the background of the aforesaid facts and circumstances, I state that the provisions contained in Chapter III of the Act deals with the procedure for making a proposal to establish SEZ as contemplated therein and for the purpose of considering the same, the provisions have been made in Chapter III constituting the Board of Approval, their duties, powers and functions. Chapter V of the Act provides for constitution of approval committee, the powers and functions of the Approval Committee, setting up of units, power of cancellation of letter of approval and for other matters enumerated therein in the said Chapter. Chapter VI deals with the exemption, drawbacks and concessions as stipulated therein in the said provisions and the provisions relating to the direct taxes, etc. The provisions contained in Chapter VII provides for constitution of SEZ authority, its functions etc.
4. In the background of the aforesaid facts and circumstances, I state and submit that for the purpose of carrying out the provisions of the Act, the provisions contained in Section 55 of the Act, empowers the Central Government to frame Rules by notification for carrying out the provisions of the Act and such Rules may in particular and without prejudice to generality of such Rules making power, such Rules may provide for all or any of the matter enumerated therein in the said provisions of Section 55(2) of the Act. In the background of the aforesaid facts and circumstances, I state and submit that the letter of approval granted to the respondent no.8 contains one of the conditions that the developer shall conform to the environmental requirements. It is in this behalf submitted that one of the words by the petitioner in the beginning of para as "without mandatory prior environmental clearance from the respondent Ministry of Environment and Forest ...." is not a part of letter of approval. The letter of approval to the Developer is issued as per Rule 6 of the SEZ Rules, Page 17 of 186 17 of 189 C/WPPIL/21/2013 CAV JUDGEMENT 2006 by the Central Government on recommendations of the Board of Approval. It is further submitted that likewise letter of approval to the co-developer is also issued by the Central Government on the basis of the recommendations of Board of Approval in respect of the proposal in terms of the provisions of Section 3(11) and (12). It is further submitted that the letter of approval to the units located in SEZ is issued by the Development Commissioner after approval of the proposal of the unit by the Unit Approval Committee (UAC) in terms of the provisions contained in Section 15(3) and (9) of the Act. It is further submitted that the letter of approval issued to the Developer/co-developer or the unit is subject to the terms and conditions imposed by the Board of Approval and/or the Unit Approval Committee, as the case may be.
5. So far as the contention of the petitioners to the effect that the front doors are kept closed and all cosmetics exercise undertaken by the respondent nos.10 to 21 from outside, is not correct, inasmuch as the fact is that the production of goods and its subsequent clearance from the SEZ area takes place through the "Entry and Exit Gates" as prescribed under the SEZ Act and Rules. It appears that the petitioners are not having clear idea about the functions of the units situated in the SEZ area.
6. In regards to the order dated 14.2.2013 passed by this Hon'ble Court in the above mentioned writ petition is concerned, immediately on receipt of the said order, the respondent no.5 and the office of the respondent no.5 instructed/directed all the units to comply with the order of the Hon'ble High Court immediately. Thus, with regard to the allegations, contentions, submissions and facts contained in para 1 of the above writ petition, the data as aforesaid has been placed on record before this Hon'ble Court.
8. In reply to the allegations, contentions and submissions raised by the petitioners in paragraph no.4.1 are concerned, I state and submit that the contentions raised therein by the petitioners are not justified. The submission made by the Ministry of Environment and Forests may be relied upon as far as the contraventions of the EIA Notification, 2006 by the Developer is concerned.
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As far as the order dated 9.5.2012 of the Hon'ble High Court of Gujarat in PIL No.194/2011 is concerned, it does not stop functioning of all the running units. Hence the inference drawn while forming the above contention is not only wrong but also misleading. The said order dated 9.5.2012 is as under and the same was in respect of two units i.e. Alstom Bharat Forge Power Ltd. being respondent no.10 to the PIL No.194/2011 and Kalyani Alstom Power Ltd. being respondent no.11 to the PIL No.194/2011 :
"...We dispose of this writ petition with a direction to respondent nos.10 and 11 not to proceed ahead in implementation of their project and not to undertake any further construction work, whether preliminary or otherwise, till the MPSEZ is granted environmental clearance. The writ petition to that extent is allowed."
The said order dated 9.5.2012 is applicable to the abovenamed units. However, the respondent no.5 immediately on receipt of the said order dated 9.5.2012 issued directions to the Developer/Co-Developer and Units to comply with the order in full and stop the construction activities immediately. The contention that the Central and State Authorities have illegally and unconstitutionally allowed or by turning their attention away permitted respondent nos.10 to 21 to setup their respective units within MPSEZ, put up construction thereupon and thereafter do business from the very respective units, is not correct as the respondent no.5 immediately took the steps to implement the order of the Hon'ble High Court and directed the affected parties i.e. respondent no.10 and respondent no.11 of the PIL No.194 of 2011 to stop their development related activities including construction activities.
Under the SEZ Act and rules framed thereunder, the units are leased the land in the processing area of the SEZ by the Developer on the basis of Letter of Permission issued by the Unit Approval Committee and to complete the compound wall for the whole available land of the SEZ area is the responsibility of the Developer. The units, to whom the land/space is leased by the Developer, are, in turn, required to obtain the applicable Environmental Page 19 of 186 19 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Clearance separately as may be applicable to them. All the units situated in this SEZ may not be required to obtain prior Environmental Clearance which depends upon the category in which they are falling."
IV. Submissions on behalf of the Petitioners:
Mr.Anand Yagnik, the learned counsel appearing for the petitioners, submitted that it is only after the counter was filed by the respondent no.8 MPSEZ to his petition, his clients learnt that the environmental impact assessment committee had recommended to the Ministry of Environment and Forests, Government of India, to grant environmental clearance in terms of Clause 8 of the Notification, 2006, subject to certain terms and conditions, but as the Ministry of Environment and Forests failed to consider such recommendations by the Experts Appraisal Committee within the stipulated period of time, by the deeming fiction provided in Clause 8, a deemed clearance is said to have been granted in favour of the MPSEZ.
According to Mr.Yagnik, the question of deemed environmental clearance has arisen in view of the failure on the part of the regulatory authority, namely, the Ministry of Environment and Forests, to respond to and take an appropriate decision upon the recommendations of the Expert Appraisal Committee within a period of 45 days.
Mr.Yagnik submitted that such a failure is conscious and mala fide only with a view to benefit the respondent no.8 MPSEZ in seeking the environmental clearance.
Mr.Yagnik submitted that in such a serious matter the Page 20 of 186 20 of 189 C/WPPIL/21/2013 CAV JUDGEMENT respondent no.1 - Ministry of Environment and Forests, Government of India, has not thought fit even to file a formal reply so as to make its stance clear before the Court.
Mr.Yagnik submitted that the deeming fiction so far as the grant of environmental clearance on expiry of 45 days from the date of the recommendations of the EAC is concerned, would apply only in cases in which the project or the activity undertaken is strictly in accordance with law. In the present case, according to Mr.Yagnik, there has been a flagrant violation and disregard of the terms of the Notification, 2006, and in such circumstances, the respondent no.8 cannot take shelter of the deemed clearance said to have been granted in their favour.
Mr.Yagnik submitted that the whole defence of the respondent no.8 and the other unit holders as regards the grant of deemed environmental clearance is completely misconceived because not only the respondent no.8 MPSEZ but the individual unit holders have violated the terms of the Notification, 2006 by proceeding ahead with the development in the absence of any environmental clearance. In short, the sum and substance of Mr.Yagnik's submissions is that having committed the illegality the same would not get condoned by a fiction of law, which provides for a deemed environmental clearance.
Mr.Yagnik submitted that the essence of EIA Notification is that unless a prior environmental clearance is granted, the project proponent has no right to put up any construction whatsoever on the land of the proposed project. In the present Page 21 of 186 21 of 189 C/WPPIL/21/2013 CAV JUDGEMENT case, the respondent nos.10 to 21, on the strength of the so- called leasehold rights conferred by the respondent no.8 MPSEZ in the absence of any environmental clearance granted in their favour, proceeded to complete their individual projects and are operating the same full-fledged past five years. At this stage, now they cannot take the shelter of the deemed clearance by a fiction of law.
Mr.Yagnik submitted that the issue which he has raised in the petition has been substantially answered by this Court in its decision rendered in the case of Ranubha Rajmalji Jadeja and others v. Union of India and others, Writ Petition (PIL) No.194 of 2011 decided on 9th May 2012.
Mr.Yagnik submitted that from the language of the Minutes dated 5th June 2012, it appears that the EAC had no idea that the respondent no.8 MPSEZ had substantially undertaken the work of development and construction to provide infrastructure to the individual unit holders within the SEZ and that the MPSEZ had already made allotment of plots on lease, and on the strength of such leasehold rights, the respondent nos.10 to 21 had fully developed their individual plots by putting up the construction. According to Mr.Yagnik, if the recommendations are final, then only in such circumstances, the question of grant of deemed environmental clearance would arise in the event the regulatory authority fails to respond and take a decision within 45 days thereafter.
Mr.Yagnik would submit that the Minutes of the meeting does not suggest that the recommendations are final and this could be clarified only by the EAC of the Ministry of Page 22 of 186 22 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Environment and Forests, Government of India.
Mr.Yagnik laid much stress on the fact that the Ministry of Environment and Forests, Government of India, thought fit to appoint Sunita Narain Committee on 14th September 2012 in view of the complaints received from the Kheti Vikas Sewa Trust regarding severe impact upon the environment safety and integrity in MPSEZ committed by M/s.Adani Port and Special Economic Zone Limited.
In such circumstances, the respondents should not be permitted to take shelter of such a deemed environmental clearance as that would frustrate the very object of seeking a prior environmental clearance before undertaking any work of construction on the Special Economic Zone.
Mr.Yagnik placed reliance on the following decisions in support of his submissions :
(1) A Division Bench decision of the Bombay High Court in the case of Gram Panchayat Navlakh Umbre through Navlakh Umbre Parisar Paryavaran Vikas Sangh v. Union of India and others, Public Interest Litigation No.115 of 2010 decided on 28th June 2012;
(2) A Division Bench decision of this High Court in the case of Raj Mineral through Proprietor Sharad L.Vyas v. State of Gujarat, 2011(3) GLH 257;
(3) Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and others, (2007)11 SCC 40;
(4) Mansinghbhai Kahalsingbhai and others v. Surat Municipal Corporation and others, 2000(2) GLH 269;
(5) Aneeta Hada v. Godfather Travels and Tours Private Page 23 of 186 23 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Limited, (2012)5 SCC 661; (6) Modern Dental College and Research Centre and
others v. State of Madhya Pradesh and others, (2009)7 SCC 751;
(7) Bharathidasan University and another v. All-India Council for Technical Education and others, (2001)8 SCC 676;
(8) Union of India and others v. All India Children Care and Educational Development Society, Azamgarh and another, (2002)3 SCC 649;
(9) Kalidas Umedram and others v. State of Gujarat and another, (1996)7 SCC 635;
(10) Mansingbhai Kahalsingbhai v. Surat Municipal Corporation, AIR 2001 Guj. 44;
(11) Pravinkumar Maganlal Patel v. Surat People's Co-op Bank Limited, 2008(3) GLH 770;
(12) T.N.Godavarman Thirumulpad v. Union of India and others, (2012)11 SCC 415.
V. Submissions on behalf of the Respondent No.8 MPSEZ in Writ Petition (PIL) No.21 of 2013 and Respondent No.2 in Special Civil Application No.2621 of 2013..
Mr.Dushyant Dave, the learned senior advocate appearing for Singhi & Company raised the following preliminary contentions as regards the maintainability of the Writ Petition (PIL) No.21 of 2013 filed by the villagers :
The petitioners are guilty of suppression of material facts. The petitioners have suppressed the fact that the Expert Appraisal Committee has recommended the environmental Page 24 of 186 24 of 189 C/WPPIL/21/2013 CAV JUDGEMENT clearance in respect of the Adani Port & Special Economic Zone Limited vide minutes of the meeting dated 04/05.06.2012 and minutes of the meeting dated 09/10.07.2012 both of which were available on the official website of Ministry of Environment and Forests. When the petitioners approached this Court on the premise that APSEZ did not have an environmental clearance, it was duty bound to disclose that the EAC had recommended the project and the requisite period under Clause 8(i) and (ii) had already expired resulting in environmental clearance being granted to APSEZ for its SEZ in terms of EIA Notification, 2006 before the petition was filed, particularly when the petitioners appear to be otherwise very well informed. They knew about the Environment Impact Assesment Report of SEZ, the Sunita Narain Committee Report, the earlier judgment in Writ Petition (PIL) No.194 of 2011 and various circulars of MoEF downloaded from the official website of MoEF, etc. The individual units were setup from 2010 onwards and the petitioners being residents of the village, in the vicinity of which the units have been setup, would have been aware of the fact that the units are being setup in the SEZ. The units are being setup since 2010 and have also thereafter been commissioned. The petitioners have approached this Court after the commissioning of units and more than three years after they were aware of the units being setup.
Even at the time of public hearing for environmental clearance for the SEZ, which took place on 05.10.2010, the petitioners/villagers were aware of the fact that 20 units are being setup as is evident from the objection raised by Page 25 of 186 25 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Dharmendrasinh Jadeja, President Samaghoga/Baraya Gram Vikas Samiti vide letter dated 05.10.2010 addressed to the Chairman of the Public Hearing Committee.
The petitioners have not made any averment in the petition in respect of the clearance granted to the SEZ pursuant to clause 8(iii) read with clause 8(i) and (ii) of the EIA Notification, 2006 and yet have made oral submissions in respect of the same, which cannot be taken into consideration by this Court. Proper pleadings are a prerequisite for any writ petition including a public interest litigation.
The petitioners have neither challenged the vires of Clause 8(iii) of the EIA Notification, 2006 nor have they have challenged the decision of the Expert Appraisal Committee. The petitioner cannot be permitted to raise such contentions by making mere oral submissions.
Some of the residents of village Navinal had filed Writ Petition (PIL) No. 194 of 2011 seeking relief against two units, which were under construction. When such petition was filed, the petitioners therein would have been aware of the existence of the units of Respondent nos.10 to 21 herein and could have sought relief against the said Respondents in Writ Petition (PIL) No.194 of 2011. They having failed to do so, the present Public Interest Petition through other villagers is barred on the principles of constructive res judicata. Different parties/ residents cannot be permitted to approach this Court time and again by filing PILs and seek relief against different units. Such action apart from being barred on the principles of constructive res judicata is also an abuse of the process of the Court.
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The present petition is not a bona fide public interest litigation, but should be more appropriately termed as a political interest litigation. This is evident from the fact that the petitioners have suppressed material facts, not disclosed the source of their funds to proceed with the present litigation and having come to the Court after a considerable delay.
All parties concerned namely the MoEF, Ministry of Commerce & Industry, Gujarat Pollution Control Board, APSEZ and the units were bona fide of the view that no environmental clearance of the SEZ was necessary for individual units to come up in the SEZ till the judgment was delivered in Writ Petition (PIL) No. 194 of 2011 on 09.05.2012. No industrial units have come up after the said judgment was delivered by this Court. Pursuant to the recommendations of EAC, the clearance is granted to the SEZ in terms of EIA Notification, 2006 as per clause S(iii) read with clause 8(i) and (ii) with effect from 20.07.2012.
All the units which are operating, have been granted their respective requisite clearances as required by the MoEF/State Environment Impact Assessment Authority ('SEIAA')/GPCB. These authorities, being aware that the SEZ has not yet been granted environmental clearance, granted clearances to the units.
No condition was imposed, while granting environmental clearance, on the units that the said clearance is subject to the clearance being granted to the SEZ.
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The Development Commissioner under the Special
Economic Zones Act, 2005 granted approval for the units to be established in the SEZ without any condition qua the environmental clearance to the SEZ and in fact imposed a condition that the unit should be established within a stipulated period.
When the public hearing under the EIA Notification, 2006 was conducted, the villagers were very much aware that units were being established and had even sought information in respect of the same under the RTI Act, and one Dharmendrasinh K.Jadeja in his letter dated 05.10.2010 addressed to the Public Hearing Committee, had specifically mentioned about the existence of 20 units. These proceedings were with the EAC when it recommended environmental clearance in respect of SEZ.
At the EAC meeting held on 16/17.04.2012, presentation was made by APSEZ in which it was highlighted that certain units have been commissioned and the position of the units was also clearly demarcated in the map tendered before the EAC.
The advocate for the petitioners had addressed two letters to the MoEF dated 27.08.2011 and 13.09.2011, specifically alleging that the unit of petitioners of Special Civil Application No.2621 of 2013 are being established in SEZ in absence of environmental clearance to the SEZ. In spite of such letter, when the petitioners of Special Civil Application No.2621 of 2013 inquired from the MoEF vide letter dated 12.10.2011 whether they need any environmental clearance or Page 28 of 186 28 of 189 C/WPPIL/21/2013 CAV JUDGEMENT not, the MoEF responded vide letter dated 25.10.2011 that no environmental clearance is required for establishing their units in the SEZ under EIA Notification, 2006.
As is evident from the observations made by this Hon'ble Court in Part-IV of its judgment in Writ Petition (PIL) No. 194 of 2011 dated 09.05.2012, the Union of India was supporting its letter dated 25.10.2011 addressed to the petitioners of Special Civil Application No.2621 of 2013 that no environmental clearance was required for their unit to be established in the SEZ and that the Union had nothing more to say in the matter.
MoEF has itself granted environmental clearance to units in Andhra Pradesh Special Economic Zone on 08.06.2009 and 05.08.2011 before environmental clearance was granted to the said SEZ on 13.02.2012 and the said units were even established before environmental clearance to the SEZ. Similarly, MoEF granted environmental clearance to a unit in Dahej SEZ on 19.08.2008 before the environmental clearance was granted to the said SEZ on 17.03.2010. Even projects within this SEZ were granted clearance by MoEF prior to environmental clearance to the SEZ itself.
In view of Clause 8(iii) of EIA Notification, 2006, the final recommendation of the EAC shall be considered as grant or denial of clearance by the Regulatory Authority in terms of such recommendation, if the Regulatory Authority fails to communicate its decision pursuant to the final recommendations within the time stipulated in Clauses 8(i).
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(1) The entire premise of the petitioners' contention is
based on an assumption that an application would get "deemed clearance" under Clause S(iii) of the EIA Notification, 2006 if the regulatory authority (MoEF) does not decide within the stipulated period. This is incorrect. The fiction created under Clause 8(iii) is not that the application as made by a project proponent is deemed to be granted, but that the recommendations of the EAC, after scoping and due appraisal, whether approving or rejecting the proposal, are to be treated as the decision of the regulatory authority, which is a different matter altogether.
(2) There is no provision/condition in the EIA Notification, 2006 to the effect that the deeming provision would be inapplicable on account of the commencement of construction prior to grant of environmental clearance. Reading such a condition into the EIA Notification, 2006 would amount to legislating which is impermissible.
(3) Such a condition cannot be read in by an analogy with case law relating to deemed permission, but has to be supported by a provision in the notification, since the fiction is not that the application as made is deemed to be granted without scrutiny, but that the recommendations of the expert body - EAC, made after due appraisal, are treated as if the same is the decision of the regulatory authority.
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(4) The principle of "reading down" a provision would
not apply in the present case since the same would be applicable only for the purpose of saving the provision from being declared ultra vires the Constitution or the parent statute or for the purpose of bringing it in conformity with the parent statute, which is not the case here. In any case, in the absence of a challenge to the provision, there cannot be any question of reading it down.
(5) Similar provisions exist in environmental legislations, including Section 25(7) of the Water (Prevention and Control of Pollution) Act, 1974, proviso to Section 21(2) of the Air (Prevention and Control of Pollution) Act, 1981 as well as Clause 2(V) of the Environment Impact Assessment Notification, 1994. Therefore, a deeming provision is not unknown to environmental legislation.
(6) The scheme of the EIA Notification, 2006 indicates a very comprehensive procedure entailing application of mind at every stage by persons equipped with the necessary expertise for deciding whether an SEZ project deserves environmental clearance, as also the importance of time bound decision making in this regard at every stage. The scheme therefore indicates the rationale and reasonableness of the provisions. Therefore, there is no justification for reading something into the notification by holding that the deeming clause is not applicable to certain cases.
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(7) The very authority which has issued the EIA
Notification, 2006 has itself not interpreted it to mean that a breach thereof would warrant automatic shelving of the application or would render the deeming provision inapplicable. Such an interpretation by the very authority issuing the notification is entitled to be given weight particularly since the Hon'ble Court is considering interpretation of a subordinate legislation of that authority itself and not the interpretation of a parent statute on the basis of an interpretation of an administering authority.
(8) The judgments on deemed permission cited by the petitioners are clearly distinguishable. In all those cases, the deemed permission itself ran contrary to the statute, in other words the subject matter of such permission (SEZ in this case) was not permitted by law.
(9) Reliance placed by the petitioners and the Union on the letters of MoEF to Gujarat State Coastal Zone Management Authority ("GCZMA") dated 26.10.2012 and the replies thereto by APSEZ and GCZMA do not in any manner militate against the clearance already granted under EIA Notification, 2006 on the basis of the recommendations of the EAC. Even the appointment of Sunita Narain Committee does not militate against the clearance. Such subsequent inquiry cannot in any manner Page 32 of 186 32 of 189 C/WPPIL/21/2013 CAV JUDGEMENT affect the clearance granted, unless some action in respect of SEZ is taken.
IV. Coastal Regulatory Zone ("CRZ") clearance also stands granted in light of CRZ Notification dated 06.01.2011.
Since project has been granted clearance under the EIA Notification and since Gujarat State Coastal Zone Management Authority has recommended the project, the contention that CRZ clearance is not granted is ex-facie untenable.
V. Sunita Narain Committee was constituted after the clearance is granted to APSEZ in terms of Clause 8(iii) and the same was constituted in respect of earlier environment clearance granted in respect of the port activities of the project proponent and not in respect of the SEZ, which is an independent project of the project proponent.
VI. A company such as APSEZ has various projects such as port and port backup related activities, social infrastructure, SEZ. For each such project, APSEZ as a project proponent is required to obtain environmental clearance. As and when it obtains environmental clearance in respect of such project, the project proponent can carry out the activities of such project. There is absolutely no requirement that all environmental clearances are required to be obtained before any activity is carried out.
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SEZ is one of the projects of the project proponent APSEZ. While it is true that it can carry out activities and create infrastructure for the SEZ after obtaining environmental clearance under EIA Notification, 2006, there is nothing under the Special Economic Zones Act, 2005 or the EIA Notification, 2006 prohibiting it from leasing the land to different parties for establishing their projects in the SEZ and that both the SEZ and the units can establish themselves after obtaining necessary consents/environmental clearance respectively.
While the judgment delivered by this Hon'ble Court in Writ Petition (PIL) No.194 of 2011 dated 09.05.2012 is a binding precedent, the respondent no.8 submits that the factual premises on the basis of which the said judgment has proceeded is incorrect in so far as it proceeds on the basis of the answer given on behalf of this respondent to a specific query raised by the Hon'ble Court. It clearly appears from the judgment that the Counsel for the Respondent did not appreciate the purport of the question and consequently answered it on the basis of what he understood was the question.
Section 3 of the Special Economic Zones Act, 2005 (hereinafter referred to as the 'Act') provides for the procedure for seeking approval of a Special Economic Zone ('SEZ') and its grant by the Central Government. Once an area is notified under Section 4(1) of the Act as a SEZ exemption is available both under Section 7 and Section 26 of the Act to the SEZ or a unit situated therein. The areas in the SEZ have to be Page 34 of 186 34 of 189 C/WPPIL/21/2013 CAV JUDGEMENT demarcated into processing and non-processing areas by the Development Commissioner under Rule 11 of the Special Economic Zones Rules, 2006 (hereinafter referred to as the 'Rules') read with Section 6 of the Act.
For establishing a unit in a SEZ the person so interested may submit a proposal to the Development Commissioner which shall forward it to the Approval Committee and once approval is granted by the Approval Committee, the Development Commissioner may grant Letter of Approval to the person concerned. The relevant provisions are Section 15 of the Act read with Rule 17 and 18 of the Rules. The Developer can enter into a lease agreement and give possession to such entrepreneur only after the Development Commissioner grants Letter of Approval, and such entrepreneur individually will have to undertake to fulfill environmental and pollution control norms as may be applicable to the industry/unit which he proposes to establish [see Rule 18(2)(ii) and (iii)]. Thus, the Act itself contemplates individual environment and pollution clearances to be obtained by the units which are being set up in the SEZ.
In the event, SEZ is refused environmental clearance the units may lose the benefit of exemptions granted under the Act, but the land leased to them would continue to be with them and if they want to run the industry they can do so long as they fulfill the requirements of environmental laws.
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In view of the above, it is not essential for leasing of land or for establishment of units in the SEZ that SEZ should have environment clearance. The individual units must obtain such environmental clearance, as may be necessary.
SEZ of the respondent no.8 is presently extending over 8000 ha and to develop the complete SEZ would take considerable time. The property of the SEZ belongs to APSEZ. There is absolutely no bar in giving lands in the processing zones on lease for units to come up after the Development Commissioner grants approval to such units to be established in the SEZ. There is absolutely no bar in the units being established either under the SEZ Act or under the Environment (Protection) Act, 1986 for units to obtain their environmental clearance and establish themselves as and where environmental clearance has been granted (See above). Development activities have been carried out either by the developer or co-developer (such as CETP and social infrastructure). In fact the CETP has been established for the benefit of the units which have been approved by the Development Commissioner. It would be well neigh impossible for the developer to completely develop the SEZ and then grant lease for the units to come up. That is not the intendment or purport of the provision of the Act or the rules framed thereunder.
Once the Development Commissioner grants the approval to the unit, such approval is only for the period of one year and the unit has to commence production/service within Page 36 of 186 36 of 189 C/WPPIL/21/2013 CAV JUDGEMENT one year, which can be extended for further period not exceeding two years and for a further period of one year provided two-third of the activities relating to the setting up of the unit is complete. [see Rule 19(4)] The respondent no.8 charges lease rentals for the land given on lease and such charges have nothing to do with the infrastructure to be provided by the respondent no.8. It is a pure and simple lease between the owner of the property and the lessee. Separate maintenance charges are leviable by the respondent no.8 for the infrastructure which it provides/may provide in future. If the SEZ fails to provide, for any reason whatsoever, it can still charge lease rentals, while it may not be in a position to claim any maintenance charges.
Even otherwise, the judgment dated 09.05.2012 passed in Writ Petition (PIL) No. 194 of 2011 also does not lay down that the Developer cannot sub-lease the land, since the observation that the Developer was not entitled to sub-lease the land is found only in the supporting view taken by the Hon'ble Chief Justice. In fact, the finding in the judgment rendered by one of us (Pardiwala, J.) is to the effect that the Developer could have allotted plots to the companies desirous of putting up their Units. Therefore, the said judgment dated 09.05.2012 contains two different views on this issue and hence it may not be considered to be an authority for the proposition that the allotment or lease of the plot is impermissible in law.
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The contention that the approval granted to the SEZ under SEZ Act has expired is ex-facie untenable in view of Rule 6(2)(a) and (aa) of the Rules, which provide that the Letter of Approval of a Developer shall be valid for three years, within which time atleast one unit has commenced production, in which case the approval shall continue. In the instant case as this has happened, the validity of the Letter of Approval continues.
VI. Submissions on behalf of the Respondent Nos.10,14,15,17 and 19 :
Mr.Mihir Joshi, the learned senior advocate assisted by Mr.Shamik Bhatt, made the following submissions :
The recommendations made by the EAC are not the subject matter of challenge in Writ Petition (PIL) No.21 of 2013 filed by the villagers. In such circumstances, the petition itself would not survive and if the petitioners are inclined to challenge the legality and validity of grant of deemed environmental clearance on the basis of the recommendations of the EAC, then the petitioners should file a fresh petition and no relief could be granted in the present petition.
Mr.Joshi submitted that assuming for the moment that his clients took possession of the plots allotted to them by the MPSEZ and pursuant to such allotment they put up construction and started operating their individual units, by itself would not be a bar in grant of environmental clearance.
Mr.Joshi submitted that this petition deserves to be Page 38 of 186 38 of 189 C/WPPIL/21/2013 CAV JUDGEMENT rejected on the ground of delay itself as his clients have already started operating their units since 2008 onwards and by now a huge investment has been made in the individual projects.
Apropos the aforenoted submissions, according to Mr.Joshi, the learned senior advocate appearing for the individual unit holders, the following issues may be considered by this Court in deciding whether the petitioners are entitled to any of the reliefs claimed in the petition :
1. Whether the commencement of construction in the SEZ prior to grant of environmental clearance can render the provision for deemed clearance inapplicable and ineffective in the facts of the case.
2. Whether the commencement of construction in the SEZ prior to grant of environmental clearance can render the decision of the EAC void and non-est under law.
3. Whether the decision of the EAC deserves to be quashed and set aside on the limited parameters of judicial review available in cases of decisions of Expert bodies.
4. Whether legality and validity of the deemed clearance of the SEZ and that of the decision of the EAC dated 4/5.6.2012 recommending grant of environment clearance can at all be questioned in the absence of any challenge thereto or relief being sought for in that behalf in the petition.
5. Whether the default of the Developer in obtaining environmental clearance for the SEZ at the relevant time or the inaction of the authorities in processing the application for environmental clearance, is of a nature as would render the setting up of Units illegal, particularly in the context of existence of valid permissions granted to the Units under the Page 39 of 186 39 of 189 C/WPPIL/21/2013 CAV JUDGEMENT SEZ Act and environment laws and in the context of the absence of any default, mala fides or bad faith on the part of the Units.
6. In the facts of the case, where the EAC has recommended environmental clearance, where the Units have duly complied with their obligations under law and there is no fault or bad faith that can be attributed to the Units, whether the petitioner is entitled to the relief of closure/demolition of the Units as prayed for, particularly in the absence of any adverse environment impact being 'averred or established.
7. Whether a direction for demolition on the ground that the deemed clearance in any case would not validate the prior illegality, is not harsh, inequitable, disproportionate and would amount to issuing a futile writ, since the same construction could be put up immediately upon demolition.
8. Whether the subsequent actions of the MoEF militate against the contention regarding deemed clearance.
9. Whether the respondents are in contempt of earlier directions of this Hon'ble Court.
10. Whether the petition is barred by delay and laches.
11. Whether the petition is maintainable.
VII. Submissions on behalf of the Respondent Nos.11,16,18 and 21 :
Mr.Mihir Thakor, the learned senior advocate appearing with Ms.Amrita Thakor, has raised the following submissions :
The entire premise of the petitioners' contention is based on an assumption that an application would get "deemed Page 40 of 186 40 of 189 C/WPPIL/21/2013 CAV JUDGEMENT clearance" under Clause 8(iii) of the EIA Notification, 2006 if the regulatory authority (MoEF) does not decide within the stipulated period. This is incorrect. The fiction created under Clause 8(iii) is not that the application as made by a project proponent is deemed to be granted, but that the recommendations of the EAC, after scoping and due appraisal, whether approving or rejecting the proposal, are to be treated as the decision of the regulatory authority which is a different matter altogether.
There is no provision/condition in the EIA Notification, 2006 to the effect that the deeming provision would be inapplicable on account of the commencement of construction prior to grant of environmental clearance. Reading such a condition into the EIA Notification, 2006 would amount to legislating which is impermissible.
Such a condition cannot be read in by an analogy with case law relating to deemed permission, but has to be supported by a provision in the notification, since the fiction is not that the application as made is deemed to be granted without scrutiny, but that the recommendations of the expert body - EAC, made after due appraisal, are treated as if the same is the decision of the regulatory authority.
The principle of "reading down" a provision would not apply to the present case since the same would be applicable only for the purpose of saving the provision from being declared ultra vires the Constitution or the parent statute or for the purpose of bring it in conformity with the parent statute, which is not the case here. In any case, in the absence of a Page 41 of 186 41 of 189 C/WPPIL/21/2013 CAV JUDGEMENT challenge to the provision, there cannot be any question of reading it down.
Similar provisions exist in environmental legislations, including Section 25(7) of the Water (Prevention and Control of Pollution) Act, 1974, proviso to Section 21(2) of the Air (Prevention and Control of Pollution) Act, 1981 as well as Clause 2(V) of the Environment Impact Assessment Notification, 1994. Therefore, a deeming provision is not unknown to environmental legislation.
The scheme of the EIA Notification, 2006 indicates a very comprehensive procedure entailing application of mind at every stage by persons equipped with the necessary expertise for deciding whether an SEZ project deserves environmental clearance, as also the importance of time bound decision making in this regard at every stage. The scheme therefore indicates the rationale and reasonableness of the provisions. Therefore, there is no justification for reading something into the notification by holding that the deeming clause is not applicable to certain cases.
The very authority which has issued the EIA Notification, 2006 has treated the project/activities inside the SEZ distinctly from the SEZ itself. In the case of the Dahej SEZ, the MoEF granted environmental clearance to one Indofil Organic Industries Ltd. situated in the Dahej SEZ on 19.8.2008, much prior to the grant of environmental clearance to the Dahej SEZ itself on 17.3.2010. Even in the present case, the Thermal Power Plant, the CETP and Township and Area Development Project, which are all situated inside the SEZ, have been Page 42 of 186 42 of 189 C/WPPIL/21/2013 CAV JUDGEMENT granted environmental clearance and are carrying on activities.
The very authority which has issued the EIA Notification, 2006 has itself not interpreted it to mean that a breach thereof would warrant automatic shelving of the application or would render the deeming provision inapplicable. Such an interpretation by the very authority issuing the notification is entitled to be given weight particularly since the Court is considering the interpretation of a subordinate legislation of that authority itself and not the interpretation of a parent statute on the basis of an interpretation of an administering authority.
The nature of the alleged illegality is not such as would warrant non-consideration of the application for all time to come, for the following reasons :
i. The clearance is sought for an SEZ which is essentially an industrial estate, with little pollution potential of its own and grant thereof does not give an unbridled licence for units to be set up in the area since they also have to comply with the requirements of the environment laws individually.
ii. The construction of the Thermal Power Plant (TPP), CETP and social infrastructure in the SEZ has been undertaken with appropriate environment clearances which have not been challenged.
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iii. The Units were not made aware at any stage that SEZ did not have the required clearance and the representation was to the contrary as evidenced by the lease deeds. The authorities have at no point of time ever conveyed any objection to the activities undertaken by the units for setting up their industry. The Units have applied for and obtained permission for setting up Unit in SEZ from the Development Commissioner and No Objection Certificate and Consolidated Consent from GPCB as applicable.
iv. The illegality as held by this Court is in the Units commencing construction prior to the clearance being granted to the SEZ. The Units have otherwise been set up in accordance with the necessary permissions and in accordance with law. A distinction must be drawn between commencement of construction without the SEZ having permission at that stage and a Unit set up without requisite approvals at all, and the consequences of both cannot be the same.
v. The nature of the illegality is such that public purpose will not be sacrificed if it is impliedly regularised by granting the clearance.
vi. In any case, the requirement of prior clearance is by subordinate legislation and the interpretation and understanding of the authorities is also not that post facto grant is impermissible.
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In the present case, there is no allegation of any illegality attached to the decision making process and hence there cannot be any question of judicial review in the present case.
The EIA Notification, 2006 provides for a comprehensive procedure leading upto the recommendation by the EAC. Clause 7(11) provides that the EAC is required to determine comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for preparation of an EIA Report. Thereafter, as per Clause 7(111), a public consultation has to take place during which the concerns of the local affected persons and others having a plausible stake in the environmental impact of the project are to be ascertained. The final EIA Report is to be prepared pursuant to the completion of public consultation and this is to be submitted to the EAC by the applicant. Thereafter, the EAC is required to carry out appraisal of the project in terms of Clause 7(IV), which means a detailed scrutiny of the application, final EIA Report, outcome of public consultations, etc. After detailed scrutiny, the EAC has to make its recommendation to the regulatory authority either or grant or for rejection of environmental clearance.
In the present case, the aforesaid process has been followed over a period of 3 1/2 years starting from January 2009 when the TOR was determined, public consultations during October 2010 record of which was sent to MoEF, submission of Rapid Environment Impact Assessment Report and presentation by the respondent no.8 before the EAC in April 2012, submission by the respondent no.8 of the Page 45 of 186 45 of 189 C/WPPIL/21/2013 CAV JUDGEMENT details/information sought by EAC in May 2012 and thereafter, the recommendation of the EAC on 4/5.6.2012.
At no stage the entire proceeding culminating in the EAC's recommendation has been challenged on any ground. Nor has the same been challenged or questioned in the present petition. There is no fault found in regard to the decision making process. Therefore, the EAC's decision is not open to challenge in the present petition.
Assuming that the EAC's decision is open to challenge on merits, the EAC is constituted by the Central Government under Clause 4(h) of the EIA Notification, 2006 and comprises of professionals and experts with requisite expertise and experience in certain fields/disciplines as more particularly provided in Appendix VI of the EIA Notification, 2006. Therefore, the decision of the EAC is a decision of a expert body. The Courts are not equipped with necessary expertise to look into the issue of whether the decision of the EAC is incorrect on merits, that is, whether the SEZ project deserves, on merits, an environmental clearance or not.
The petitioners have sought to contend that the EAC was not cognizant of the fact that the respondent Units were already constructed and were operational inside the SEZ and certain other infrastructure facilities were also established and hence its decision is based on incorrect and incomplete facts, which therefore vitiates its decision. In this regard, the respondents submit as under:
Page 46 of 18646 of 189 C/WPPIL/21/2013 CAV JUDGEMENT i. This argument of the petitioners confuses the SEZ project with the individual projects of the Units situated inside the SEZ. The bar against construction is qua the SEZ project/activity and not the independent projects/activities coming up inside the SEZ like those of the respondent Units. This is also the understanding of the very authority which has issued the EIA Notification, 2006. [see the case of the Dahej SEZ and Indofil Organic Industries Ltd. Here also, environment clearance was granted to the Thermal Power Plant, the CETP and Township and Area Development Project, which are all situated inside the SEZ] ii. There is no provision in the EIA Notification, 2006 to the effect that construction carried out prior to grant of environmental clearance would result in rejection of the proposal of the project proponent. Therefore, the decision of the EAC cannot be vitiated on such a ground which is not available as per the provisions of the EIA Notification, 2006.
This petitioners' argument proceeds on a presumption that the EAC was not aware of the construction inside the SEZ. Such a presumption is not warranted in the absence of the records and proceedings of the EAC and is not warranted even in view of the following documents/facts on the record of the present petition: (1) Development Commissioner's letter dated 30.7.2010, (2) representation dated 5.10.2010, (3) GPCB's letter dated 11/18.10.2010, (4) judgment dated 9.5.2012, (5) minutes of EAC meeting dated 4/5.6.2012 indicating that EAC Page 47 of 186 47 of 189 C/WPPIL/21/2013 CAV JUDGEMENT was aware of court cases, (6) the fact that respondent no.8 had made a presentation and submitted a map with the location of the Units to EAC during its meeting dated 16/17.4.2012, (7) MoEF's site visit on 6/7.12.2010, (8) the activities of some of the Units (for example the respondent no.16 manufactures very huge boilers weighing hundreds of tons, and the respondent no.18 has a warehouse and open yard for storage of machinery and equipment) are such that it is not possible to suggest that such activities can be carried out otherwise than in an open manner, (9) the Units are operating under their own independent permissions granted by concerned authorities, (10) the other projects inside the SEZ like TPP, CETP, township have received environmental clearance.
The petition primarily seeks an order restraining the respondents' activities till environmental clearance is granted to the SEZ. It does not question the legality and validity of the decision of the EAC dated 4/5.6.2012 recommending grant of environment clearance, or that of Clause 8(iii) of the EIA Notification, 2006, or that of the deemed clearance to the SEZ by virtue of the said Clause 8(iii).
Going into the question of the correctness or otherwise of the EAC's decision or the validity of the deemed clearance would amount to changing/enlarging the scope of the petition and travelling far beyond the pleadings.
A challenge to the EAC's recommendation would necessarily entail comprehensive pleadings on fact and law as Page 48 of 186 48 of 189 C/WPPIL/21/2013 CAV JUDGEMENT also grounds on which the same is challenged, and would involve going into the records of the proceedings prior to the recommendation made by the EAC and also EAC's own records. Without this, the issue of validity of the EAC's recommendation cannot be gone into.
As per Clause 8(iii) of the EIA Notification, 2006, if the decision of the MoEF (which is the regulatory authority) is not communicated within the period specified, the recommendation of the EAC is deemed to be the decision of the MoEF. In the present case, the MoEF has not communicated any decision in regard to grant/rejection of environmental clearance to the SEZ pursuant to the recommendation of the EAC as contained in the minutes of the EAC's meeting held on 4/5.6.2012 and 9/10.7.2012. Therefore, Clause 8(iii) of the EIA Notification, 2006 comes into play and hence the recommendation of the EAC to grant environmental clearance to the SEZ is deemed to be the decision of the MoEF.
In the absence of any pleading or relief sought, it would not be permissible to go into the legality or otherwise of the deemed clearance of the SEZ, not only since it would amount to travelling far beyond the scope of the petition but also because it would amount to questioning the provisions of the EIA Notification, 2006 without any foundation whatsoever for doing so in the petition itself.
Going into the validity of the deemed clearance would also amount to changing the nature of the petition which is Page 49 of 186 49 of 189 C/WPPIL/21/2013 CAV JUDGEMENT limited to seeking a restraint order against the respondent units till the SEZ has environmental clearance.
The Developer of an SEZ is either the owner or the lessee of the land on which the SEZ is established. Such ownership/leasehold rights are independent property rights of the Developer which have no connection with environmental laws and therefore, lease/sublease by the Developer of such land or portions thereof in favour of other entities is not subject to environmental laws. The Units are therefore legal and validly in possession of their respective parcels of land and have rights over the same.
The EIA Notification, 2006 does not bar establishment and operation of Units in their respective plots even if the SEZ itself has not received environmental clearance. If the individual Units operating inside an SEZ (which does not have environmental clearance) have obtained all necessary permissions/consents, they would be in the same position as similar non-SEZ units operating outside an SEZ.
The provisions of the SEZ Act provide that a person intending to set up a Unit in an SEZ has to submit a proposal to the Development Commissioner concerned. Such proposal is thereafter forwarded to the Approval Committee for its approval. If approval is granted, the Development Commissioner issues a Letter of Approval to the person concerned to set up a Unit in the SEZ and undertake such operations which the Development Commissioner may authorise. The SEZ Rules prescribe that a Letter of Approval would be valid for a period of one year within which period the Page 50 of 186 50 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Unit shall commence its activity, subject to an extension being granted by the Development Commissioner on a request of the entrepreneur. It is also provided that the Letter of Approval would be valid for 5 years, subject to further extensions, from the date of commencement of production or service activity and it shall be construed as a licence for all purposes related to authorized operations. Thus, the said provisions demand timely action on the part of the Units in regard to starting their commercial actitivities.
The present respondents (which are entities having no connection with the respondent no.8) are Units situated within the multi-product SEZ of the respondent no.8 situated at Mundra, Kutch. The said respondents have been issued their respective Letters of Approval by the respondent no.5 - Development Commissioner for setting up their units and carrying on their operations in the SEZ. The said respondents have executed their respective agreements with the respondent no.8 in respect of the revenue survey numbers or part thereof on which their units are situated. They have received necessary permissions, as applicable to each of them, under applicable environmental laws.
Thus, the existence and activities of the units are carried out pursuant to necessary approvals and permissions having been granted by various authorities including the Central Government through the Development Commissioner. The activities of the respondent units can, by no stretch of imagination, be termed as "surreptitious" and are in fact very much within the knowledge of all concerned authorities, including the Central Government.
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The respondents are independent entrepreneurs
unconnected with the respondent no.8, who, being the "Developer" of the SEZ, has to provide only the infrastructure facilities in the SEZ. They have themselves constructed their industrial sheds/units on their respective parcels of land inside the SEZ. The respondent no.8 has nothing to do with the ownership, construction and operation of the units.
The units were not made aware at any stage that the SEZ did not have the required clearance and the representation was to the contrary as evidenced by the lease deeds.
The authorities have at no point of time ever conveyed any objection to the activities undertaken by the units for setting up their industry.
The units have been established based on the understanding and interpretation placed by the very authority (MoEF) which has issued the EIA Notification, 2006 to the effect that the units in an SEZ are to be treated distinctly from the SEZ itself.
The units have no say in and cannot take any steps in regard to getting environmental clearance in respect of the SEZ.
Had the respondents been aware that the SEZ did not have all necessary clearances and that they could not have constructed and operated inside the SEZ, there was no logical reason or advantage to them to invest huge sums of money in Page 52 of 186 52 of 189 C/WPPIL/21/2013 CAV JUDGEMENT establishing their units in this SEZ, given the likelihood of closure/demolition of the said units.
The case is required to be viewed in the context of the fact that, if the units are closed/demolished, it would result in a serious travesty of justice. This is because the consequence of the inability or default of the Developer in obtaining environmental clearance or the inaction of the authorities in processing the Developer's application for environmental clearance would solely fall on the units, which have started after complying with all their requirements and which have absolutely no say in the matter of environmental clearance of the SEZ. Such a direction would therefore be extremely harsh and inequitable.
The units have established on the basis of their respective Letters of Approval, agreements and permissions/consents. They were not made aware at any stage that the SEZ did not have the required clearance and the representation was to the contrary as evidenced by the lease deeds. The authorities have at no point of time ever conveyed any objection to the units' activities.
The EIA Notification, 2006 does not contain any provision to the effect that the units would be prohibited from carrying on construction and industrial activity. Nor does it contain any provision for closure/demolition of the units on such a ground. Thus, such a prayer is not supported by law.
The understanding and interpretation of the authorities as regard the provisions of the EIA Notification, 2006 was also Page 53 of 186 53 of 189 C/WPPIL/21/2013 CAV JUDGEMENT to the effect that the activities of the units could go ahead if they had their own permissions as applicable.
There is no allegation of any environmental damage on account of the activities of the units.
The entire procedure as prescribed in the EIA Notification, 2006 has been followed pursuant to which the EAC has recommended that the SEZ be granted environmental clearance. The MoEF having not taken a contrary decision within the stipulated time, the said recommendation has become the decision of the MoEF as per law. Even if it is held that the deeming provision as per Clause 8(iii) of the EIA Notification, 2006 would not apply in the present case, the fact remains that the EAC has recommended grant of environmental clearance to the SEZ and hence demolition of the units pending the decision of the MoEF would be unjust and inequitable, especially when the EIA Notification, 2006 itself provides that the recommendation of the EAC should normally be accepted.
If demolition is directed and thereafter the MoEF accepts the recommendation of the EAC, it would imply issuance of a futile writ and would also entail huge losses to all concerned.
The consequences of issuance of a writ as prayed for would fall on the units who have not indulged in any illegality at all, without subserving any public interest since the breach complained of is not having environmental clearance for Page 54 of 186 54 of 189 C/WPPIL/21/2013 CAV JUDGEMENT commencing activity in the SEZ, and not that of any adverse environment impact.
Even otherwise, such a direction cannot be passed in the present proceedings without the petitioners having approached the appropriate authorities having the powers to direct demolition.
In the aforesaid circumstances, it would be extremely unjust and unreasonable to direct closure/demolition of the units.
The EIA Notification, 2006 does not contain any provision for suspending the time period prescribed in Clause 8 thereof. Such a provision cannot be read into the notification.
The time period prescribed in Clause 8 of the EIA Notification, 2006 for the regulatory authority (MoEF) to take a decision and the effect of not taking a decision within such period cannot be suspended on account of mere inaction/failure on the part of the MoEF to take a decision. Such an interpretation would be dehors the language of the provision and would defeat the purpose thereof.
The period of 45 days from the date of the recommendation of the EAC got over on 21.7.2012 or 25.8.2012. The only subsequent action of the MoEF was that of addressing the letter dated 26.10.2012 to the GCZMA and that of appointing the Sunita Narain Committee, which was done on 14.9.2012. Both the said actions were subsequent to the Page 55 of 186 55 of 189 C/WPPIL/21/2013 CAV JUDGEMENT expiry of the period of 45 days and therefore had no bearing on the deemed clearance.
Even otherwise, many months have passed since the Department of Forests and Environment, State of Gujarat addressed a letter dated 9.1.2013 to MoEF giving details as sought by the MoEF and the Sunita Narain Committee gave its report dated 18.4.2013. Despite this, nothing is heard from the regulatory authority. Hence, there is no justification for contending that the deeming provision as contained in Clause 8(iii) of the EIA Notification, 2006 remains in abeyance even as on date.
The earlier directions were given in Writ Petition (PIL) No. 194 of 2011 in which the respondents were not made parties. Therefore the respondent cannot be said to be in contempt thereof.
The directions in that petition were specifically to the units which were made parties therein and hence do not apply to the present respondents.
The units have been constructed and are functioning in the SEZ since about 2 years or more. The nature of the construction and activities are such that there could be no question of doing the same "surreptitiously". The units have obtained all approvals/permissions as applicable to them and such approvals/permissions are public records. The record of the present petition indicates that the petitioners were aware of the existence of the units.
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The records pertaining to the construction and activities of the Thermal Power Plant, the CETP and the township were also publicly available since these projects were granted environmental clearance and these facts were also in the knowledge of the petitioners since the petitioners have themselves produced the EIA Report.
The present petition was filed on or about 12.2.2013, that is, many years after the construction of the units and the aforesaid projects started and much after the said units and projects commenced their commercial activities.
The Writ Petition (PIL) No.194 of 2011 seeking almost identical reliefs was filed on or about 28.12.2011 and it is clear from the judgment rendered therein that the existence of the units was within the knowledge of the public much prior to the filing of the same.
The petitioners, by their own inaction, have allowed the units to be set up by incurring huge expense and have placed the respondents in a situation in which it would be unreasonable, inequitable and unjust to put them back in their original position prior to the construction of their respective units. In such circumstances, the respondents submit that the present petition suffers from gross delay and laches and the reliefs sought by the petitioners, if granted at this stage, would result in grave injustice and inequity.
There is no allegation of any environmental impact of damage or imminent danger to the environment or any injury Page 57 of 186 57 of 189 C/WPPIL/21/2013 CAV JUDGEMENT and hence there is no violation of any constitutional or legal right.
The petitioners have not approached the appropriate authorities under the environmental laws in regard to the prayers made by them in the present petition. The petitioners are asking this Court to act as a substitute to the authorities established under the environmental laws.
The petition is barred in view of the National Green Tribunal Act, 2010 and the judgment of the Hon'ble Supreme Court reported in 2010 (8) SCC 326.
VIII. Submissions on behalf of the Respondent No.12 - Empezar Logistics Private Limited :
Mr.P.C.Kavina, the learned senior advocate appearing on behalf of the respondent no.12, submitted that so far as his client is concerned, there is no question of any environmental impact or damage or imminent danger to the environment as his client is engaged in the business of providing its service in relation to warehousing, storage of goods, container freight stations and allied services, logistics support and other such activities. Mr.Kavina submitted that according to the provisions of the EIA Notification, 2006, the environmental clearance is required to be taken by only those projects which are listed in the Schedule thereto and not any others. In such circumstances, according to Mr.Kavina, the case of his client is altogether different from the other respondents.
IX. Submissions on behalf of the Petitioners of Page 58 of 186 58 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Special Civil Application No.2621 of 2013 :
Mr.Gopal Subramaniam, the learned senior advocate appearing for the petitioner, made the following submissions :
In the case of the Mundra SEZ, the EAC recommended approval of the proposal of APSEZ for EC as recorded in the minutes of its meeting held on June 4-5, 2012 read with the minutes of its meeting held on July 9-10, 2012. More than a year has passed since then but the MoEF has not conveyed its decision. The time frame stipulated in Clause 8 of the EIA Notification has elapsed long ago and it is submitted that by virtue of the provisions of Clause 8 of the EIA Notification, the EC is deemed to have been granted by MoEF to the Mundra SEZ in terms of the final recommendations of the EAC. Hence, it is submitted that the Petitioners can carry on construction and proceed ahead with the implementation of their respective Projects in the Mundra SEZ.
It is submitted that in the present case it is the EAC which is the expert body for making the recommendation as to whether EC should be granted or not. The panel of EAC is constituted by experts that are appointed by the Government itself and paramount importance has to be given to the recommendations of the EAC as is also evident from the fact that Clause 8(ii) itself mandates that 'the Regulatory Authority shall normally accept the recommendations of the Expert Appraisal Committee...'. Further, the EIA notification 2006 issued by the Government is a complete code that is not dependent on anything.
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It is submitted that the role of the regulatory authority MoEF whilst considering the EAC recommendations is very limited inasmuch as MoEF is not an expert body but a Ministry having no expertise in the matter. MoEF has very limited discretion in the matter and must normally accept the recommendations of the Expert Appraisal Committee.
Clause 8(iii) is not a deeming fiction whereby upon expiry of a particular period, the mere application for EC stands automatically granted without any application of mind. Clause 8(iii) creates a deeming fiction only to give finality to the recommendations of the expert body i.e. the Expert Appraisal Committee which has considered the application for EC in detail and has made the recommendation after following the detailed stage wise procedure prescribed in Clause 7 and after a thorough and detailed application of mind by the experts comprising the EAC. Clause 8 (iii), therefore, only gives finality to the recommendation of the expert body which has made its recommendation on the basis of a detailed inquiry into the same. Clause 8(iii) gives finality to the recommendations of the expert body whose recommendations are even otherwise mandated to be normally accepted by the Regulatory Authority under Clause 8(ii).
It is submitted that this Court and the MoEF both cannot substitute their opinion for an expert opinion. The Central Government being the regulatory authority has no expertise of its own and must normally act on the report submitted by the EAC. The Central Government does not possess unfettered discretion but only guided discretion which discretion is based upon the recommendations of EAC.
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It is submitted that if the Central Government would have had any objection to the EAC recommendations it would have pointed out the same in the first instance. In the present case without prejudice to the contention that EC has already been granted to Mundra SEZ as per Clause 8 of the Notification, it can also be logically and reasonably be inferred that EAC's recommendation for grant of EC has been accepted by the Central Government.
It is submitted that the obligation of the Central Government under the notification is timely and the sole intention of putting the time constraint is to ensure that a timely decision is taken by the Central Government which in the present case it has failed to take. It is submitted that an applicant who is entitled and recommended by the experts for an EC should timely know the stand of MoEF, otherwise it may have to face a situation of cost overrun causing massive financial injury to such an applicant.
This Court in its judgment dated 9.05.2012 in Writ Petition (PIL) No.194/2012 had held the Petitioners i.e. ABFPL does not require any EC as the Projects proposed to be set up by the Petitioners do not fall under the category of projects requiring EC under the EIA Notification, 2006. However, the Petitioners were prohibited from proceeding ahead with the implementation of their Projects and to undertake any further construction work due to the finding that the Mundra SEZ had not yet been granted an EC for the Multi Product SEZ as a whole. The Petitioner in compliance with the said order immediately stopped further construction of their Projects.
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It is submitted that after the judgment dated 9.05.2012, various developments have taken place and EAC being the expert body, after detailed and careful analysis of all relevant facts and circumstances, has recognized that EC has to be given to APSEZ. APSEZ has informed the Petitioner that it has fulfilled all necessary requirements for grant of EC. However, the Central Government has neither rejected nor accepted the recommendation of the EAC. It has not asked the EAC to reconsider its recommendation. It is submitted that there has been absolutely no communication from MoEF with regard to the EAC recommendations. The Central Government has to act reasonably and has to keep in mind the cannons of discipline while accepting or rejecting the recommendations of EAC, however, it can surely not be allowed to merely sit silent for over a year.
Further, this is not even a case where the Central Government has put APSEZ to certain terms and conditions before it could act upon the EAC recommendations. Instead, MoEF has formed a new third party committee namely the Sunita Narain Committee that has no role whatsoever and any view taken by this new committee whether positive or negative will be of no help. It is submitted that the Committee is an extra-judicial body which has no power or authority whatsoever insofar as analyzing the EAC recommendations is concerned.
It is submitted that it can surely not be allowed by this Court that the Petitioner herein suffers for absolutely no fault of its own and only due to MoEF's unjustified delay in considering the EAC recommendations. It is submitted that this Page 62 of 186 62 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Court, in the backdrop of such facts, has the authority to put certain terms and conditions to APSEZ whilst acting upon its EC as recommended by the EAC and may also take a guarantee from APSEZ that it will fulfill all its obligations.
It is submitted that the sole intention of the judgment dated 9.05.2012 was to prevent an irregularity which could be rectified even now. The intention was never to dislocate the units but to compensate the ones who have been dislocated.
It is submitted that it is for this Court to decide the future coarse of action and no purpose will be served by sending the matter back to the Government or to the EAC. Even the Sunita Narain Committee Report recognized the same and suggested the following -
"7.2. Recommendation for effective deterrence for non- compliance and remedial measures - In the Committee's assessment there is incontrovertible evidence of violation of EC condition and non- compliance. It must also be recognized that the Company has bypassed environmental procedures in certain cases. The question before the Committee is to determine the future course of action. One option would be to recommend the cancellation of clearances, where procedures have been bypassed. In addition, legal proceeding could be initiated against non-compliance and violations of EC conditions. But it is also clear that these steps, however, harsh they may sound, are in the nature of being procedural and would only lead to delay without any gains to the environment and the people. The Committee is cognizant of the fact that large scale development has already been undertaken and it is not possible or prudent at this stage to halt or cease its operations. Therefore, the Committee has decided to recommend a different course of action, which is both intended to be an effective deterrent and also suggests the way for future remedial action to improve the environment."Page 63 of 186
63 of 189 C/WPPIL/21/2013 CAV JUDGEMENT It is submitted that it is a well-known fact that there were no indigenous turbine manufacturing facilities in India and therefore turbines had to be imported in to India which had been a very expensive process. Alstom being one of the leading manufacturers would be manufacturing these turbines in India through the petitioners which would be cost effective and environment friendly. It is submitted that the petitioners being a responsible company, has acted with great caution as it has not performed any activity whatsoever after the judgment dated 9.05.2012 unlike the other 12 units and moreover has acknowledged its duty to secure the environment and protect the same.
The petitioners submit that upon learning that the EAC in its 113 meeting held on 4/5 th June, 2012 and the 114 th meeting held on 9/10th July, 2012 had duly recommended the proposal of the Mundhra SEZ favourably for grant of EC and CRZ Clearance, the petitioners first addressed a letter dated 28 th September 2012 seeking clarifications from APSEZ whether it had complied with all the conditions mentioned by the EAC in its minutes while recommending their case for grant of EC by the competent authority and whether after the recommendations by EAC on 9th July 2012, APSEZ had heard anything from the Government on the issue. By its letter dated 29th September, 2012, APSEZ informed the petitioners that it had complied with all the conditions mentioned in the Minutes of the 113th meeting of the EAC and also that APSEZ had not received any communication from the MoEF after the 114 th Meeting of the EAC was held on 9th July 2012. The time frame Page 64 of 186 64 of 189 C/WPPIL/21/2013 CAV JUDGEMENT stipulated in Clause 8 of the EIA Notification having elapsed and therefore, by virtue of Clause 8 (iii) of EIA Notification, the recommendation by the EAC having been deemed to have been accepted by MoEF, the petitioners bona fide believed and continue to believe that the EC sought for Mundra SEZ is deemed to have been granted by MoEF in terms of the EAC recommendation. However, before acting further on the basis that the EC had been granted, the petitioners thought it fit and proper to first seek a clarification from the MoEF in this respect. In view of the same, the petitioners sent a letter dated 11th October, 2012 to the MoEF inter alia drawing its attention to the provisions of Clause 8(iii) of the EIA Notification and requesting MoEF to advise the petitioners as to whether their understanding of the said clause is correct and they can accordingly proceed with the implementation of their Projects and resume their construction activities. MoEF did not reply to the letter and did not give any clarification as to whether EC is deemed to have been granted to APSE2.
It is the MoEF's responsibility to put APSEZ to terms and ensure that APSEZ complies with them. However, the MoEF has maintained an inexplicable silence. It has neither asked the EAC to reconsider its recommendation nor has it granted the EC. It is APSEZ's responsibility to ensure that EC is granted at the earliest. It is on APSEZ's representations that the petitioners leased the plots in the SEZ and invest money on it. Therefore, APSEZ was bound to take all steps to get the EC including seeking appropriate remedy before this Court, however, it has not taken any such step. In this tussle between the MoEF, who has to give the EC, and APSEZ, whose obligation it is to get the EC, it is the petitioners who are stuck.
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While the petitioners have complied with the order of this Court and stopped construction, APSEZ and the other units have continued to operate. Therefore, the petitioners had no other remedy except to file the present petition.
It is submitted that since the MoEF has abandoned its duty regarding grant of EC, this Court should hold the APSEZ has EC in view of the the EAC recommendation. Without prejudice to the petitioners' submission that the APSEZ has deemed EC, it is submitted that even if this Court were to hold that the APSEZ does not have deemed EC, it is prayed that this Court should not send the matter to MoEF and instead itself consider the EAC recommendation and grant EC subject to any terms that this Court may deem fit.
The petitioners, under the bona fide belief that EC is deemed to have been granted, have before taking any further steps have thought it fit and proper to approach this Court and have acted in a very bona fide manner.
The petitioners have neither committed any illegality nor it has acted against the Judgment dated 9.05.2012. It is evident from the judgment dated 9.05.2012 coupled with MoEF's letter dated 25.10.2011 to the petitioners, ABFPL per se does not require an Environment Clearance. It is submitted that the petitioner has never taken the law in its hand and have always wanted to approach this Court to adopt the right path which clearly works out balance of convenience in favour of the petitioners.
It was submitted that an order be passed by this Court declaring that the APSEZ has a deemed clearance under Clause 8 (Hi) Page 66 of 186 66 of 189 C/WPPIL/21/2013 CAV JUDGEMENT of EIA Notification, 2006 and thus, there is no impediment against the petitioners in continuing to establish their respective Projects in land situated in Mundra SEZ, being part of Revenue Survey No. 295/1 and part of Revenue Survey No. 225 of Mouje Village Siracha and Navinal, Tal, Mundra, District Kutch, Gujarat in view of the fact that the petitioners have already obtained statutory clearances inter alia from Gujarat Pollution Control Board.
Submissions of the Petitioners in rejoinder :
Mr.Anand Yagnik, the learned advocate appearing for the petitioners in Writ Petition (PIL) No.21 of 2013 in rejoinder, made the following submissions :
(i) Deeming provision in Clause 8 (iii) can be invoked by the private respondents only when, as a pre-condition, the proposed SEZ and the units within the same have complied with the clause 2 of the EIA Notification, 2006.
Indisputably, the Developer of the proposed SEZ has carried out substantial development of providing infrastructure as stated in final EIA Report of April 2012 and otherwise.
Moreover, all the respondent units have stated on oath in their reply that they have developed their respective units by putting up construction and carrying out manufacturing activity for last more than two to four years. In other words, the private respondents have flagrantly violated Clause 2 of EIA Notification and the development within the proposed SEZ and within the respective units is absolutely illegal and therefore, deeming provision cannot come to the rescue of the respondents and either give an environmental clearance or legitimize illegal development and construction.
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In other words, one who violates the basic purpose and object of EIA Notification, 2006 and instead of carrying out no development till the environmental clearance is granted, has carried out substantial development and construction cannot be permitted to resort to deeming fiction.
Deeming fiction is based on presupposition that the proposed project is in conformity with the law, which provides deeming fiction. If the case is otherwise, then deeming fiction cannot be permitted to be invoked by one who has consistently violated the very notification providing for such deeming fiction.
Section 3(3) of the Environment (Protection) Act, 1986 and Rule 5(iii) of the Environment (Protection) Rules, 1986 vests absolute power in the Central Government to decide and take a final decision. It does not provide for any delegation and hence, by a delegated legislation or subordinate legislation such power cannot be directly or indirectly be vested with Expert Appraisal Committee through deeming fiction. Clause 8(iii) is beyond the scope and ambit of Section 3(3) and Rule 5(iii). The same is therefore on the fact of it, illegal and unconstitutional and therefore is to be ignored or read down.
Clause 8(3) by creating a deeming fiction violates fundamental right under Article 21 of the Constitution of India merely on executive inaction. Fundamental right cannot be permitted to be frustrated or taken away by subordinate or delegated legislation, where frustration is based on inaction of the executive creating right by default in favour a project Page 68 of 186 68 of 189 C/WPPIL/21/2013 CAV JUDGEMENT proponent at the cost of the people of the affected area. On the face of it, Clause 8(3) is ultra vires and therefore, cannot be enforced or permitted to be resorted to.
It has to be interpreted in conformity with the law and the constitution.
Recommendations of the Expert Appraisal Committee are devoid of ground reality as reflected from the minutes.
In a petition under Article 226 in the nature of a public interest litigation, the Court can certainly look into the subsequent events and thereby look into the report of Sunita Narain Committee. The Report of the Committee has completely eroded the credibility of Expert Appraisal Committee and therefore, deemed environmental clearance cannot be permitted to be invoked.
Sunita Narain Committee's report has not been challenged by the private respondents.
The recommendations of the Expert Appraisal Committee are not binding as per Section 3 and Rule 5.
ANALYSIS :
Having heard the learned counsel appearing for the parties and having gone through the materials on record, in our opinion, the following questions fall for our consideration in both the petitions :
(1) Whether the Writ Petition (PIL) No.21 of 2013 filed by the residents of the village deserves to be rejected on the Page 69 of 186 69 of 189 C/WPPIL/21/2013 CAV JUDGEMENT ground of delay and laches;
(2) Whether the Writ Petition (PIL) No.21 of 2013 deserves to be rejected applying the doctrine of res judicata or constructive res judicata;
(3) Whether the Writ Petition (PIL) No.21 of 2013 should be rejected on the ground that the legality and validity of the deemed clearance of the SEZ and that of the decision of the EAC dated 4th-5th June 2012 recommending grant of environmental clearance has not been questioned and in the absence of such challenge thereto no relief could be granted in favour of the petitioners as prayed for in the Writ Petition (PIL) No.21 of 2013;
(4) Whether the Writ Petition (PIL) No.21 of 2013 should be rejected on the ground that there is an alternative remedy available to the petitioners before the National Green Tribunal constituted under the National Green Tribunal Act, 2010;
(5) Whether the decision rendered by this Court in the case of Ranubha Rajmalji Jadeja and others v. Union of India and others, Writ Petition (PIL) No.194 of 2011 decided on 9th May 2012, has any bearing on the issues involved in both the petitions herein;
(6) Whether the commencement of construction by the respondent nos.10 to 21 in the SEZ prior to the grant of environmental clearance in favour of the respondent no.8 MPSEZ could be termed as per se illegal, and if that be Page 70 of 186 70 of 189 C/WPPIL/21/2013 CAV JUDGEMENT so, then whether such an illegality could be said to have been cured on the strength of the grant of deemed environmental clearance in favour of the respondent no.8 MPSEZ by a fiction of law;
(7) Whether the respondent nos.10 to 21 as on today could be said to be lawfully operating their units within the SEZ;
(8) Whether the petitioners of Writ Petition (PIL) No.21 of 2013 are entitled to the reliefs prayed for in the petitions;
(9) Whether Alstom Bharat Forge Power Limited, the petitioner of Special Civil Application No.2621 of 2013, is entitled to a declaration that since APSEZ has obtained a deemed clearance under Clause 8(iii) of the EIA Notification, 2006, there is no impediment against it in continuing to establish their respective projects in the land situated in Mundra SEZ.
Before adverting to the rival submissions canvassed on either side, we deem it necessary to consider the issue which was raised in the Writ Petition (PIL) No.194 of 2011, and decided by this very Bench vide judgment and order dated 9th May 2012.
The Writ Petition (PIL) No.194 of 2011 was filed by the residents of village Navinal other than the one who have filed the Writ Petition (PIL) No.21 of 2013, substantially raising the grievance that without grant of prior environmental clearance in favour of the MPSEZ under the EIA Notification, 2006 issued Page 71 of 186 71 of 189 C/WPPIL/21/2013 CAV JUDGEMENT under Rule 5 of the Environment (Protection) Rules, 1986 read with Section 3 of the Environment (Protection) Act, 1986, the Alstom Bharat Forge Power Limited had started construction of its factory for the manufacturing of power plant equipments within the SEZ. Manifold issues were raised in the said petition but in substance the main issue was with regard to the environmental clearance as required mandatorily under the EIA Notification, 2006.
After taking into consideration all the relevant aspects of the matter, the question which was posed by us for our consideration in the said petition was as under :
"Having heard the learned counsel for the respective parties and having perused the materials on record, the short question for our consideration in this petition is as to whether in the absence of any environmental clearance certificate granted in favour of the MPSEZ in terms of the Notification dated 14th September 2006 issued by the Ministry of Environment and Forests, Government of India, whether the unit proposed to be setup by respondent no.10 within the MPSEZ can proceed with the construction work or not irrespective of the fact as to whether respondent no.10 is obliged to obtain any independent environmental clearance for the project or not."
We answered the aforesaid question by observing as under :
"Having regard to the mandatory nature of the environmental clearance and the object behind the Notification dated 14th September 2006, we have no doubt in our mind that respondent nos.10 and 11 could not have proceeded ahead with their projects. At the best, respondent no.8 - MPSEZ could have allotted the plots to the companies desirous of putting up their own units. In any case, the allottee of a plot (i.e. the Page 72 of 186 72 of 189 C/WPPIL/21/2013 CAV JUDGEMENT lessee) cannot proceed ahead with the construction of the unit without the MPSEZ obtaining environmental clearance from the Ministry of Environment and Forests.
We are unable to fathom the idea that all the infrastructural facilities which the MPSEZ is obliged to provide will have to be taken care of by the individual allottees in the event if for any reason the authority concerned refuses to grant environmental clearance in favour of the MPSEZ. The MPSEZ has acquired approximately 18000 hectares of land from the Government for the purpose of developing a port, which is going to be one of the Asia's biggest port. The Government has allotted approximately 18000 hectares of land for the purpose of developing a port. If the MPSEZ itself is not accorded environmental clearance, then the question will be as to who will develop the port and whether the port can be developed by the allottees who have been allotted land by the MPSEZ. This area of 18000 hectares includes 14 villages of Mundra Taluka and the MPSEZ has to provide for infrastructural facilities on a large scale, which include gardens, playgrounds, dwelling units, hospitals, clinics, dispensaries, schools, colleges, market places, hostels, hotels, restaurants, cafeterias, theaters, auditoriums, libraries, public entertainments, clubs, public utilities, service building and such other facilities, conveyances and amenities as the MPSEZ may deem it necessary or expedient for carrying out the objects of the MPSEZ and/or Mundra SEZ. For any reason, if the environmental clearance is not granted in favour of the MPSEZ, then how will the allottees be able to provide for such infrastructural facilities or infrastructure on their own, which the MPSEZ has agreed to provide as per the terms of the agreement. One cannot forget or overlook the fact that environmental clearance is required to be obtained by the MPSEZ because it has the obligation of providing the infrastructural facilities as referred to above and while providing such infrastructure, it will definitely have some impact on the environment and that is the reason why, after extensive study of the entire project, the authority has to decide as to whether environmental clearance must be granted or not. Under such circumstances, it is very difficult for us to accept the submission of Mr.Thakore that the individual allottees will take care of the infrastructural facilities. However, taking into consideration the infrastructural facilities which are required on a port, it is humanly impossible for an individual allottee or a unit holder to provide all such facilities on its own.
Over and above this, we are also of the view that if the MPSEZ has already allotted plots to different companies for setting up of the industrial plants and if such allottees have proceeded ahead with construction of their individual plants in the Page 73 of 186 73 of 189 C/WPPIL/21/2013 CAV JUDGEMENT absence of any infrastructural facilities available at the port, then that by itself will lead to a very disastrous situation.
When law requires a thing to be done in a particular manner, the same must be done in the same manner or not done at all. The law envisages that no construction, preliminary or otherwise, can be undertaken without environmental clearance and the judgment of the Supreme Court in the case of T.N.Govindavarman Thirumulkpad v/s. Union of India, reported in (2002) 10 SCC 606, also holds that it is impermissible to undertake construction of project before such a clearance, therefore, there is no reason why we should permit respondent nos.10 and 11 to go ahead with their project.
It appears to us that respondent nos.10 and 11 have taken this issue very lightly. No doubt, being allottees they would be more interested in going ahead with their venture. But, the question is, at what cost. We cannot overlook the fact that public hearing precedes environmental clearance. Law envisages that before the environmental clearance is granted, the objections in this regard must be considered by giving public hearing. One cannot lose the sight of the fact that the persons who lodge their objections or make suggestions before the committee are not only entitled to get copies of the minutes of the meeting at the public hearing, but ultimately if the Central Government grants the environmental clearance, under S.11 of the National Environmental Appellate Authority Act, 1997, they also have a right to prefer an appeal to the Appellate Authority against the order granting environmental clearance. Section 11(2) of the said Act also defines "person" as any person who is likely to be affected by the grant of environmental clearance or any association of persons (whether incorporated or not) likely to be affected by such order and functioning in the field of environment. Therefore, grant of environmental clearance is not just an empty formality but the authority has to threadbare consider each and every aspect relating to the environment. We have noticed that in the present case also, public hearing had taken place and series of objections have been raised by various people. We have also noticed that the objections are of a very serious nature and cannot be brushed aside lightly.
Our attention has been drawn to the objections placed in writing in this regard, which we would like to incorporate thus :
1. The project for which the public hearing is going on has already completed 75% of the construction activities.
The venue for the public hearing has been selected away from the project location such that the public hearing committee does not see the construction that has taken Page 74 of 186 74 of 189 C/WPPIL/21/2013 CAV JUDGEMENT place. I am ready to show you the location where the construction activities are taking place without permission. The videography of the construction must be taken before the end of the public hearing and only then the public hearing must be concluded.
2. The company has constructed parts of West port and laid a railway line on forest land without getting the necessary permissions. If the clearance has been obtained, then the company may produce the documents by the end of the public hearing.
3. If the SEZ is given clearance, then the company will construct a boundary wall thereby blocking the fishermens' access to their traditional settlements. Also, there are several creeks which are important for fishermen, these will be rendered unusable. Nearly 10,000 fishermen depend on traditional fishing and if their occupation is affected, then it will have a direct impact on their families. Why should the company be allowed to establish at the cost of the fishing community.
4. The company is in possession of Government land meant for rehabilitation of displaced persons. The company has also taken possession of Gauchar lands. In Luni village there is no Gauchar land left at all. Nearly 5000 cattle depend on the Gauchar land and if the project is allowed then the animal husbandry in the area will be severely affected. What steps will the company take in this regard ?
5. The company has taken possession of nearly 18,000 Ha. of land in the Mundra area. However, as per the central government notification, only 6472.8684 Ha. of land has been notified as SEZ. All the excess land in the possession of the company has to be given back to the Government and the lease must be cancelled. Why has the company acquired excess land ? Is the company ready to give the land back to the Government ?
6. There are several temples and mosques within the SEZ area. If the SEZ is allowed then these monuments will be destroyed and also the access road to these areas of religious importance will be blocked. What steps will the company take in this regard ?
7. The company has defrauded the public as well as the Government authorities. The company acquired forest land for the purpose of the Mundra Port and Special Page 75 of 186 75 of 189 C/WPPIL/21/2013 CAV JUDGEMENT Economic Zone and destroyed mangroves in the area. As per rules, the company is supposed to do compensatory afforestation in another area. But the company has given land near Kori Creek, which is under the control of the BSF and also it is an area which already has dense mangroves. No new mangroves are grown. What is the company's response to this ?
8. The company says that it is being established so that industrial development can take place. For this, the annual tax subsidy given by the government to the Mundra SEZ amounts to nearly 1765.65 Cr. However, consider the fact that the Central and State Government announced a package of Rs.8,500 Cr. After Kutch earthquake. In just five years, so much development has taken place in Kutch. When the company is getting so many subsidies from the Government and there is no benefit for the public, how can this be called as development ?
9. The Mundra coast has a vast intertidal zone. This area falls under CRZ I as per Government records. The company is filling such area with soil and using it for port backup/SEZ area and establishing industries over it. The hydrology of the area will be affected and the water that is blocked in this area will enter into other areas. What steps are being taken by the company to mitigate this ?
10.Nearly 20 companies have already been established in the Mundra SEZ. Because of this, already the marine pollution is increasing. If the SEZ is permitted then more industries will be allowed and there will be significant impact on agriculture and animal husbandry. What is the response of the company to this issue ?
11.The company has acquired land at a price of Rs.2 to Rs.10 from the state government and then sold it back to Government companies like IOC, IPCL at exorbitant rates of around Rs.600/-. This is misuse of taxpayers' money and only the company is making profits. The Mundra SEZ should not be allowed.
12.The Waterfront development project of the company was given environment clearance inspite of people's opposition and it is causing great damage to the environment. The workers employed by the company are cutting mangroves and using it as fuel wood. The mangrove cover is reducing day by day. This will affect Page 76 of 186 76 of 189 C/WPPIL/21/2013 CAV JUDGEMENT marine life in a significant way. What does the company say in this regard ?