Gujarat High Court Case Information System Print SCA/5986/2010 60/ 60 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5986 of 2010 For Approval and Signature: HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PATEL VIPULKUMAR RAMJIBHAI - Petitioner(s) Versus UNION OF INDIA THROUGH SECRETARY & 3 - Respondent(s) ========================================================= Appearance : MR YATIN OZA, SR. COUNSEL WITH MR TEJAS M BAROT for Petitioner(s) : 1, MR PS CHAMPANERI for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 3. MR RITURAJ M MEENA for Respondent(s) : 2, MR S.B. VAKIL, SR. COUNSEL WITH MS ARCHANA R ACHARYA for Respondent(s) : 3, NOTICE UNSERVED for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :11/05/2012 CAV JUDGMENT
(Per : HONOURABLE MR. JUSTICE J.B.PARDIWALA) By way of this writ-petition under Article 226 of the Constitution, in the nature of a public interest litigation, the petitioner, a resident of Baroda, claiming to be a public spirited citizen of India and an activist, has prayed for the following reliefs:-
"(A) Be pleased to issue an appropriate writ, order or direction, directing Ministry of Environment and Forests, respondent no.1 herein to revoke Environmental Clearance accorded to M/s. Electrotherm (India) Ltd., respondent no.3 herein, for expansion of its steel plant at Survey No. 325, 326, 339, 344 and 350 / 1 / 2 / Paiki, Milestone No. 310, National Highway No.8-A, Village : Samakhiyali, Taluka : Bhachau, District : Kutch, with immediate effect, till (i) environmental norms, (ii) EIA Notification 1994/2006 and (iii) directions issued by this Hon'ble Court in its judgment order dated 09.12.2004 in Special Civil Application Nos. 14460/2004, 14813/2004 and 14819/2004 are strictly complied with by the said respondent no.3 ;
(B) Be pleased to issue an appropriate writ, order or direction, directing Gujarat Pollution Control Board, respondent no.2 herein to revoke NOC and Consolidated Consent and Authorization and/or any other consent / permission granted to M/s. Electrotherm (India) Ltd., respondent no.3 herein, for expansion of its steel plant at Survey No. 325, 326, 339, 344 and 350 / 1 / 2 / Paiki, Milestone No. 310, National Highway No.8-A, Village : Samakhiyali, Taluka : Bhachau, District : Kutch, with immediate effect till (i) environmental norms, (ii) EIA Notification 1994/2006 and (iii) directions issued by this Hon'ble Court in its judgment order dated 09.12.2004 in Special Civil Application Nos. 14460/2004, 14813/2004 and 14819/2004 are strictly complied with by the respondent no.3;
(C) Be pleased to issue an appropriate writ, order or direction, restraining M/s. Electrotherm (India) Ltd. from continuing in any manner its industrial operations and/or taking production, either commercial or otherwise from its plant at Village : Samakhiyali with immediate effect till (i) environmental norms, (ii) EIA Notification 1994/2006 and (iii) directions issued by this Hon'ble Court in its judgment order dated 09.12.2004 in Special Civil Application Nos. 14460/2004, 14813/2004 and 14819/2004 are strictly complied with by the respondent no.3;
(D) Pending admission hearing and final disposal of the present petition, be pleased to direct respondent no.1 to forthwith suspend operation of environmental clearance granted to M/s. Electrotherm (India) Ltd., respondent no.3 herein;
(E) Pending admission hearing and final disposal of the present petition, be pleased to direct Gujarat Pollution Control Board, respondent no.2 herein to forthwith suspend NOC, Consolidated Consent and Authorization and /or any other consent / permission granted to M/s. Electrotherm (India) Ltd., respondent no.3 herein;
(F) Pending admission hearing and final disposal of the present petition, be pleased to restrain M/s. Electrotherm (India) Ltd. from continuing in any manner its industrial operations and/or taking production, either commercial or otherwise from its plant at Village : Samakhiyali with immediate effect;
(G) Any other and further relief as may be deemed fit, just and proper may be granted in the interest of justice."
2. The facts relevant for the purpose of deciding this petition may be summarized as under:-
2.1 Respondent No.3 Messrs Electrotherm (India) Limited has its steel plant at village Samakhiyali, manufacturing various products. Respondent No.3 was desirous of expanding its steel plant at village Samakhiyali. According to the petitioner, before expansion, respondent No.3 was engaged in production of Sponge Iron, Ductile Iron Pipes, Pig Iron in Blast Furnace, Steel Rolling Mill, M.S. Billets / Bars, Stainless Steel Billets, Alloy Nickel and having Induction Furnaces. According to the petitioner, the industrial activities in which the respondent no.3 indulges pose serious threat to public health and environment as the same create strong magnetic field, generates greater amount of heat, emits particulates of hydrocarbons and carbon monoxide. In case where magnesium is added to molten metal to produce ductile iron, a strong reaction ensues, releasing magnesium oxides and metallic fumes. Furnace emissions also include particulate matter in the form of dusts, metallics and metal oxide furnaces and organic vapours. The process also results into emission of noxious, gaseous substance arising from liquid metal, magnesium treatment, zinc treatment, etc. The plant also requires huge volume of water for cooling purposes and thus, according to the petitioner, the industrial activities in which the respondent no. 3 is engaged pose serious threat to environment due to emission of hazardous environment pollutants.
2.2 As per the data available with the petitioner, before the application for expansion of the steel plant was preferred, the products manufactured by respondent No.3 with the production capacity is as under:-
S.N. Products before Expansion Production Capacity before Expansion
---------------------------------------------------------------------------------------
1 Sponge Iron 6,000 MTPM 2 D.I. Pipes 4,000 MTPM 3 Steel Rolling Mill 6,000 MTPM 4 Electric Cycle and Vehicle 83 sets/M 5 Induction Furnace 17 sets/Month 6 Blast Furnace 4,500 MTPM 7 Captive Power Plant 30 MW (24 MW AFBC & 6 MW WHRB) 8 Stainless Steel 25,000 MTPM 9 Alloy Nickel 416 MTPM After
the expansion of the steel plant at Milestone No. 310, N.H. No. 8A, Village : Samakhiyali, Taluka Bhachu, District : Kutch the estimated production capacity is as under:-
S.N.
Products after Expansion Production Capacity Proposed for Expansion 1 Sponge Iron 18000 MTPM 2 Pig Iron (Blast Furnace) 18600 MTPM 3 Power Plant (WHRB) 15 MW 4 Sinter Plant 32400 MTPM 5 TMT Plant 10500 MTPM 6 D.I.
Pipe 12000 MTPM 7 MS Billets / Bars (Arc/Induction Furnace) 30000 MTPM Thus, according to the petitioner, after expansion the production capacity of respondent no.3 increased, which has again been set-up in a tabular form, which is as under:-
S.N Products Production Capacity (MTPM) Before Expansion After Expansion Total 1 Sponge Iron 6,000 18,000 24,000 2 D.I.
Pipes 4,000 12,000 16,000 3 Captive Power WHRB FBC 30 MW 6 MW 24 MW 15 MW 45 MW 15 MW 21 MW 24MW 4 Pig Iron (Blast Furnace) 4,500 18,600 23,100 5 Sinter Plant
--
32,400 32,400 6 Steel Rolling Mill 5,833 10,500 16,333 7 MS Billets / Bars 5,833 30,000 35,833 8 Stainless Steel Billets 25,000
--
25,000 9 Alloy Nickel 416
--
416 10Induction Furnaces 17 Sets / Month
--
17 sets 11 Electric Cycle and Vehicle 83 Sets/ Month
--
83 sets 2.3 According to the petitioner, expansion of a unit was permissible in law only after obtaining requisite environmental clearance from respondent No.1 as per Environment Impact Assessment Notification. The EIA Notification of 1994 as it was applicable before 14.09.2006, inter alia, stipulated that in case of expansion or modernization of any activity, if pollution load exceeded the existing one or the new project was listed in Schedule I to the said Notification, such activity shall not be undertaken unless the Environmental Clearance has been accorded by the Central Government. Relevant part of said Notification is set out hereunder :-
"1. xxx xxx xxx xxx Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of the Environment (Protection) Act, 1986 (29 of 1986) read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby directs that on and from the date of publication of this notification in the Official Gazette, expansion or modernization of any activity (if pollution load is to exceed the existing one, or new project listed in Schedule I to this notification, shall not be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure hereinafter specified in this notification.
2. Requirements and procedure for seeking environmental clearance of projects :
I
(a) xxx xxx xxx xxx II. xxx xxx xxx xxx III. xxx xxx xxx xxx IIIA. No construction work, preliminary or otherwise, relating to the setting up of the project may be undertaken till the environmental and site clearance is obtained.
3. Nothing contained in this Notification shall apply to :
(a) xxx
(b) any item falling under entry Nos. 1, 2, 3, 4 ,5, 9, 10, 13, 16, 17, 19, *21*, 25 and 27 of Schedule-I if the investment is less than Rs.50 crores."
2.4 According to the petitioner, from a perusal of the above referred Notification it is clear that no new unit could be established if the same was listed in Schedule I to the said Notification or in case of expansion the pollution load exceeded that of the existing limit, unless environmental clearance was accorded by respondent No.1. Thus, until the environmental clearance is granted by respondent No.1, neither respondent No.2 Gujarat Pollution Control Board could issue NOC or "Consent to Establish", nor can an industrial unit commence its construction for proposed industrial activities, or even undertake commercial production.
2.5 According to the petitioner, manufacturing or production activity by an industrial unit generates environmental pollutants in air, water or land. In order to keep generation of environmental pollutants under check and to ensure safety of people and environment, restrictions have been placed on industrial units which generate hazardous waste affecting health and environment. In that view of the matter various enactments have been made viz. Environment (Protection) Act, 1986, Water (Prevention & Control of Pollution) Act 1974, Air (Prevention & Control of Pollution) Act 1981 and Hazardous Wastes (Management and Handling) Rules, 1989, etc. Section 25 of the Water (Prevention & Control of Pollution) Act, 1974 pertaining to restrictions on new outlets and new discharge of sewage or trade effluent provides that no person shall, without previous consent of State Pollution Control Board, establish any industry, operation or process or any treatment or disposal or an extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land or bring into use any new or altered outlets for the discharge of sewage or begin to make new discharge of sewage. Section 21 of the Air (Prevention & Control of Pollution) Act, 1981 imposes restrictions on use of certain industrial plants by, inter alia, providing that no person shall, without previous consent of State Pollution Control Board, establish or operate any industrial plant in an air pollution control area. Section 22 of the Air (Prevention & Control of Pollution) Act, 1981 further provides that no person operating any industrial plant shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of standard laid down by the State Pollution Control Board under Clause (g) of sub-section (1) of Section 17. Under Hazardous Wastes (Management and Handling) Rules, 1989 an industrial unit generating hazardous waste shall be responsible for proper collection, reception, treatment, storage and disposal of waste listed in the Schedules to the said Rules.
2.6 It is the case of the petitioner that respondent no.3, has been committing serious acts of violation of environmental laws much before the expansion activity was undertaken. In addition thereto, new line of products such as Sponge Iron and Ductile Iron Pipes was manufactured without necessary Clearance/ Consent in that behalf. Induction Furnaces have been installed for manufacturing Ductile Iron Pipe, without prior Environmental Clearance by respondent no.1. This apart, while manufacturing other products the consented limit for manufacturing has also been grossly violated. It is stated in the petition that the Sinter Plant has been constructed by respondent No.3 without permission and the same is in operation without effective air pollution control system. Though Environmental Clearance was not granted by respondent no.1, it is alleged that respondent no.3 carried on its industrial activities and took commercial production from its plant committing flagrant violation of environmental laws, which can be verified from Site Visit Reports prepared by Regional Office of respondent no.1. It is stated that despite the above, respondent no.2 granted NOC in respect of certain products, for which there was no environmental clearance accorded by respondent no.1. It is also the case of the petitioner that in respect of the expansion of the Steel Plant, site visit was conducted by the Regional Office at Bhopal of respondent no.1 as well as respondent no.2. A Site Visit Report was prepared by the officers from the Regional Office at Bhopal of respondent no.1 of their visit on 14.09.2009 and 15.09.2009. According to the petitioner, Site Visit Report prepared by respondent no.1 brings out certain glaring facts which not only dis-entitled respondent no.3 from grant of Environmental Clearance in respect of expansion of its plant by respondent no.1 or NOC / CCA by the respondent no.2 but also called for immediate closure of industrial activities of respondent no.3. It is pointed out in the petition that Site Visit Report of respondent no.1 had revealed following illegalities and violation of environmental laws at the hands of respondent no.3.
CC & A does not show permission for manufacturing of Sponge Iron.
NOC for establishing Sponge Iron unit with capacity of 6000 MTPM and D.I. Pipes with 4000 MTPM was granted by the Gujarat Pollution Control Board on 13.09.2006.
PA i.e. respondent no.3, has not submitted valid copy of consent for Sponge Iron and D.I. units.
(iv) Sponge Iron I (3000 TPM) was commissioned in 2005. D.I. Pipe manufacturing unit and Sponge Iron II (3000 MTPM) was also commissioned in 2006 and October, 2008 respectively at the cost of Rs.30.49 crores.
(v) Two induction furnaces of 20 tones/heat capacity and four crucibles of 20 tones/heat were installed under 2005 which operated 7-8 heats per day as submitted.
(vi) As per EIA Notification, 1994 installation of induction furnaces and D.I. Pipes needs Environmental Clearance which were not obtained.
(vii) The installation of induction furnace is covered under Schedule-I (Item No.28) i.e. foundry (individual).
(viii) In addition, D.I. and Sponge Iron units were found in operation without valid consent.
(ix) Old Sinter Plant was also in operation without effective air pollution control system.
(x) GPCB has rejected CC & A application vide order dated 31.01.2009. The industry has reapplied for the CC&A, which was forwarded to HQ along with their report dated 28-7-2009. During visit, it is observed that they have installed DI Pipe manufacturing plant, having three numbers of Continuous Casting Machines (CCM). The first & second CCM were commissioned in October, 2006 as submitted whereas the third CCM has been commissioned recently in May, 2009 (Photo-3 & 4). Although PA claimed that the combined capacity of all the three CCM is 4000 MT/day but, production date of DI pipe reveals that the industry has exceeded consented limit during the months January, 09, February, 09, March, 09, April, 09, May, 09 and July, 09.
(xi) Although NOC of GPCB dated 13.9.06 indicates manufacturing of DI pipes to the tune of 4000 MTPM but does not indicate diameter size of pipes. It was observed that pipe of various sizes are being manufactured.
(xii) Later, the industry has obtained environmental clearance dated 20/02/2008 for manufacturing of 150 MT/day Pig Iron. The industry has been granted NOC (CTE) for the same by the Board vide order dated 30/04/2008.
(xiii) During visit, it has been observed that construction of the BF was going on and about 90% of the construction work is completed along with Sinter Plant (Photo-5). It is evident from the records that Sinter Plant which is in construction was not covered in earlier granted EC. PA submitted that they have applied for EC for third Blast Furnace having capacity 18600 MT/Month.
(xiv) Compliance report of EC dated 20/02/2008 appears to be unsatisfactory and detailed report is being sent separately.
2.7 It is further the case of the petitioner that respondent No.3 has committed various violations of environmental laws and carried on its industrial activities without mandatory clearance and consent from the respondent authorities. According to the petitioner, not only did the respondent No.3 continued its industrial activities in an illegal manner violating environmental laws, but also sought expansion of a steel plant, which would further worsen the situation.
2.8 According to the petitioner, the following breaches of environmental laws were noticed in the site visit report of the respondent authorities.
(i) Sponge Iron :
Respondent no.3 commissioned, in the year 2005 Sponge Iron Plant I with production capacity of 3000 tons per month. Subsequently, Sponge Iron Plant-II was commissioned in October, 2008 with production capacity of 3000 tons per month, although respondent no.3 did not have valid consent for Sponge Iron and the Consolidated Consent and Authorization dated 11.11.2005 of respondent no.2 did not include permission for manufacturing of Sponge Iron. Despite the above position, respondent no.3 has been manufacturing Sponge Iron since 2005.
(ii) Induction Furnaces :
Respondent no.3 manufactures 17 sets of Induction Furnaces per month, as per the Site Visit Report of respondent no.1. Induction Furnaces have also been installed for production of Ductile Iron Pipe by the respondent no.3. Installation of Induction Furnaces needs prior Environmental Clearance, which was not obtained by the respondent no.3. Induction Furnace is a foundry which is covered under Schedule-I, Entry No.28 of EIA Notification, 1994.
(iii) Ductile Iron Pipe :
Respondent no.3 commissioned manufacturing unit for Ductile Iron Pipes in 2006 with production capacity of 4000 MTPM. Ductile Iron Pipes are manufactured by use of induction furnaces which involve foundry work. Therefore, Ductile Iron Pipes are necessarily in the nature of foundry operations, which fell under Entry No.28 of Schedule-I to the EIA Notification, 1994. Therefore, before commencing manufacture of Ductile Iron Pipes, respondent no.3 was bound to obtain environmental clearance from respondent no.1. However, environmental clearance was not obtained from respondent no.1 and Ductile Iron Pipes are being manufactured. Further, Ductile Iron Pipes were manufactured without valid consent. As also observed in para 41 of the judgment dated 09.12.2004 of this Hon'ble Court in Special Civil Application Nos. 14460/2004, 14813/2004 and 14819/2004, manufacture of ductile iron spun pipe and ductile iron cast pipe by use of induction furnace involves foundry work. Vide the said judgment and order a mandatory direction was issued on respondent no.1 to seek necessary clarification from the Expert Committee, with a further direction to the respondent no.2-Gujarat Pollution Control Board not to grant consent to operate for Ductile Iron Pipe fittings and Ductile Iron Casting without prior environmental clearance. Thus, respondent no.3 even exceeded the consented limit for the production of ductile iron pipes for the months of January, February, March, April, May and July, 2009. This apart, respondent no.3 set up new casting and finishing line for production of Ductile Iron Pipes with the larger diameters i.e. above 400 mm. However, the NOC granted by respondent no.2 though did not indicate diameter size of pipes, pipes of various sizes i.e. different diameters are being manufactured by respondent no.3.
(iv) Sinter Plant :
Respondent no.3 constructed Sinter Plant though there was no permission for the construction of the same. The said old sinter plant is in operation without effective air pollution control system. Report of Site Visit conducted on 14.09.2009 and 15.09.2009 by respondent no.1 shows that Sinter Plant was not covered in the environmental clearance earlier granted on 20.02.2008 by respondent no.1. The said environmental clearance dated 20.02.2008 was granted for manufacturing 150 MT/day Pig Iron which apparently did not include Sinter Plant.
(v) Consolidated Consent and Authorization :
Application made by respondent no.3 for Consolidated Consent and Authorization was rejected by the respondent no.2 vide order dated 31.01.2009. Respondent no.3 reapplied for Consolidated Consent and Authorization vide application dated 08.05.2009 and the Consolidated Consent and Authorization was awaited from respondent no.2. However, during the said period, production of Ductile Iron Pipes with new casting machine and finishing lines was continued, as without the same production of pipes with 400 mm diameter would not have been possible.
Commercial Production :
Respondent no.3 was granted NOC dated 13.09.2006 by respondent no.2 for establishing Sponge Iron Unit with production capacity of 6000 MTPM and Ductile Iron Pipes with production capacity of 4000 MTPM, for which no Environmental Clearance was granted by respondent no.1. However, the commercial production of Ductile Iron Pipes was commenced on and from 23.12.2005 i.e. much before 13.09.2006.
2.9 It is the case of the petitioner that thereby respondent No.3 committed flagrant violation of various environmental laws which warranted not only decline of any further clearance or consent but also called for immediate closure of all the industrial activities of respondent no.3 as an urgent remedial measure. According to the petitioner, the factum of serious breach of environmental laws and utter negation to comply with earlier granted clearance / consent gets fortified by the above referred Site Visit Reports of the respondent-authorities. It is further the case of the petitioner that as authorities are enjoined with duty to protect health and environment, respondent nos. 1 and 2 ought to have insisted for closure of the industrial activities undertaken by respondent no.3 as an immediate measure to prevent detriment to health and environment, till the respondent no.3-industry strictly complied with the environmental norms, more particularly when they were satisfied that severe breaches and violation of environmental laws were committed by respondent no.3.
2.10 According to the petitioner, respondent no.3-Industry indulged into serious violation of environmental norms and even as on date generates environmental pollutants harming public health and environment. The illegalities being committed by the respondent no.3 are recorded in the above referred site visit reports of the respondent authorities. It is stated that as per the knowledge of the petitioner no further site visits have been conducted after the above referred site visits on 14.09.2009 and 15.09.2009 by the respondent authorities.
2.11 According to him respondent authorities have not conducted any other site visits after earlier site visits on 14.09.2009 and 15.09.2009 and therefore, without such further site visits it could not be ascertained whether respondent no.3-industry strictly complies with the environmental norms or continue violation or breach of the said norms and whether it carries industrial activities in accordance with EIA Notification and Environmental Norms. It is the case of the petitioner that without conducting fresh site visit by taking a complete somersault from its earlier definite findings regarding serious breaches and violation of environmental laws by respondent no.3, respondent no.1 has recommended the case of respondent no.3 for grant of Environmental Clearance.
3. It is in this background that the petitioner has approached this Court by way of the present petition bringing to the notice of this Court the illegal grant of environmental clearance by respondent No.1 and Consent/NOC/CCA by respondent No.2 despite flagrant violation of environmental laws by respondent no.3.
4. Notice was issued to the respondents and in response to the notice, respondents have appeared and have opposed this petition by filing affidavit-in-reply.
5. Stand of respondent No.1 as taken in the affidavit-in-reply:
5.1 According to respondent No.1 - Ministry of Environment and Forests, Government of India, respondent No.3 had applied for No objection Certificate to the Gujarat Pollution Control Board for production of sponge iron and duct iron pipes which was granted by respondent No.2 Board on 13.9.2006. The said NOC was granted by respondent No.2 Board on the ground that respondent No.3 shall not carry on any activity in contravention of EIA Notification of 1994. It is stated that pursuant to the grant of NOC, respondent No.3 applied for consolidated consent for operating its SIP and DIP units on 18.9.2006, and the same was granted on 7.12.2009. Environmental clearance was sought for in the month of November, 2007 and after due scrutiny and following due procedure including public hearing which was conducted on 12.6.2007, the said environmental clearance was granted on 28.2.2008 for production of sponge iron, pig iron by products slag and coal char and captive power plant that is WHRB based CPP (30MW).
5.2 It is further stated that respondent No.3 submitted proposal for expansion of production capacity for environmental clearance along with all the requisite documents. The proposal along with all necessary documents was placed on 17.8.2009 before the Expert Appraisal Committee (Industry) constituted by the Ministry of Environment & Forests under the EIA Notification, 2006. The Committee recommended the project for environmental clearance and sought certain clarification for internal examination by the Ministry of Environment and Forests before granting environmental clearance.
5.3. It is further stated in the affidavit that after receiving all the clarifications/explanation from the project, environmental clearance was accorded to respondent No.3 on 27.1.2010, subject to stipulation of environmental safeguards for compliance.
5.4 With regard to the maintainability of the petition, the stand of respondent No.1 is that since the petitioner has sought prayer for revoking of environmental clearance which was accorded to respondent No.3 after appropriate scrutiny and after due consideration to all the relevant facts of the case, an alternative and efficacious remedy by way of an appeal before the National Environment Appellate Authority constituted under Section 11 of the NEAA Act, 1997 is available to the petitioner. It is stated that any person aggrieved by an order granting environmental clearance in the area in which the industries/operations or process/class of industries, operations and process shall not be carried out or shall be carried out subject to certain safeguards, shall have to prefer an appeal to the authority within 30 days from the date of such order. The order granting the environmental clearance was passed on 27.1.2010, whereas the petition was filed on 10.5.2010.
5.5 According to respondent No.1, due care was taken while scrutinizing the environmental clearance application of respondent No.3 and site was visited by the Ministry's Regional Office at Bhopal on 13.9.2009, and during the said inspection, except certain minor compliance issues, it was found that all the required permissions were already obtained by respondent company. Relevant paragraphs of the report are reproduced below:-
(i) Proper "NOC" as well as environmental clearance has been accorded by the GPCB and MoEF for the Blast Furnace vide letters dated 23.2.2005 and 20.2.2008;
(ii) "NOC"
is also obtained from GPCB for sponge iron and continuous casting DI pipes (4000 MTPM) on 13.9.2006 but quantity of DI Pipes has exceeded in Jan-May, 2009 and July 2009;
(iii) Regarding enhancing of DI pipes, it is clarified that although production of DI pipes has exceeded on monthly basis during trial run but has not exceeded yearly production of 48000 TPA.
6. Stand of respondent No.2 - Gujarat Pollution Control Board, as taken in the affidavit-in-reply:
6.1 According to respondent No.2, pursuant to filing of the aforesaid petition, direction was issued to respondent No.3 Electrotherm under Section 31-A of the Air (Prevention and Control of Pollution) Act, directing closure of the industry. However, thereafter respondent No.3 by filing an undertaking sought extension of the closure for a period of two months on the ground that the plant of respondent No.3 is a continuous integrated steel plant having huge kilns and blast furnaces requiring constant cooling and continuous flow of electricity. The extension was further sought on the ground that in an event of sudden disconnection of electricity, the same may lead to a major industrial accident.
6.2 According to respondent No.2, as the undertaking was submitted along with a certificate of Chartered Engineer, extension for closure was granted by another 15 days in order to avoid any untoward incident. In order to control the problem of air pollution of the unit at the grass root level and to analyse it thoroughly, GPCB further directed that the company should undertake additional measures for controlling of air-pollution as suggested after comprehensive study of any of the independent external expert agency of national repute like IIT-Bombay, National Productivity Council, NEERI etc., and these additional measures to control pollution are be taken under the guidance from any of the independent expert agency.
6.3 Respondent No.3 Electrotherm filed an appeal under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 before the Appellate Authority, wherein, vide order dated July 15, 2010 the Appellate Authority granted stay of the closure order passed by respondent Board. Respondent company thereafter undertook an adequacy evaluation of environment management system under the guidance of National Productivity Council and the report issued by the National Productivity Council suggests that overall the emission control system was found to be adequate. The National Productivity Council has also suggested some technical measures to control the Air Pollution from the unit. GPCB is monitoring the unit for effective implementation of the measures taken by the unit as suggested in the said Report. Officers of the respondent Board made visits of the unit on July 9, 2010, July 17, 2010 and July 23, 2010 for taking air sample as required under the Act and the sample analysis report received by the Board indicates that all the parameters required under the consent are now within the permissible limit, and respondent GPCB has instructed its Regional Office to continuously monitor the industry.
7. Stand of respondent No.3 as taken in the affidavit-in-reply:
7.1 The preliminary objection raised by respondent No.3 is that a petition seeking directions to the Ministry of Environment and Forests to revoke Environmental Clearance for expansion of its steel plant at village Samakhiyali, and to compel Gujarat Pollution Control Board to revoke the N.O.C. and Consolidated Consent and Authorization or any other consent/permission granted to it is not competent. It is further stated that the petitioner has no right to compel M.O.E.F. to revoke the E.C.; that petitioner has no right to compel G.P.C.B. to revoke the N.O.C. or C.C.A. and G.P.C.B. owes no duty to the petitioner to do so; that the relief has been sought on assumptions that environmental norms, E.I.A. Notification 1994/2006 and directions issued by this Hon'ble Court in the judgment and order dated 09.12.2004, reported in 2005.4 GLR 3432 are not complied with and that the assumptions are incorrect.
7.2 It has been stated by respondent No.3 that petitioner has an alternative and equally efficacious remedy of appeal before National Environment Appellate Authority (NEAA) u/Sec. 11 of the National Environment Appellate Authority Act, 1997, but the same has not been availed of or exhausted and on this ground alone petition deserves to be dismissed.
7.3. According to respondent No.3, petitioner is not a fit person to whom a writ of this Hon'ble Court in a P.I.L. can be entrusted for the reason that the petitioner has not filed the petition bonafide for the enforcement of any public legal right, duty or obligation of the respondents nos. 1 and/or 2, but has merely lent his name to Electrotherm's business rivals, who are interested in ruining its Ductile Iron Pipe (DI Pipe) manufacturing and selling business having high business potential. After the devastating earthquake of 26.01.2001 in which Kutch was the worst affected area and in which the towns of Anjar and Bhachau were completely wiped out, Electrotherm amongst the International Relief Agencies Groups came out to set up an Integrated Steel Plant at village Samakhiyali in Taluka Bhachau. It is stated that respondent No.3 - Electrotherm, a Multi-divisional ISO-9001-2008 certified global Company, is one of the leading company in India and follows stringent quality control and environment protection management system. Through engineering innovations Electrotherm set up in the year 2005 its plant with state of the art technology for manufacture of DI Pressure Pipes of wide range for water and Sewage Applications as per IS:8329. According to respondent No.3 it's DI Pipes provide excellent means of conveyance of drinking water and they started commercial production of steel products in 2005.
7.4 According to respondent No.3, the DI Pipe industry in India has been dominated for over last two decades by a few larger players in the country, e.g. Electro Steel Casting Limited (ESCL) of Kolkata and Lanco Kalahasti Castings Limited of Chennai, which has since amalgamated with ESCL and Saw Pipes Limited (SPL), name later changed to Jindal Saw Limited (JSL), who have operated during this period under almost monopolistic market conditions preventing the market from becoming competitive. As a result, customers, who are mostly Governments and State Corporations, are losers because of high prices charged by these monopolistic players.
7.5 That Electrotherm commenced commercial production of DI Pipes in December 2005 and the petitioner, who for livelihood claims to be a freelance electrical supervisor based at Vadodara filed the petition nearly four and half years thereafter on 10.05.2010. It is stated that Electrotherm's some business rival has searched out the petitioner to file the petition and that the petitioner is not a person of means, knowledge or information, who can on his own come out with a petition of this nature. In the normal course of events he would have hardly any information or knowledge personally of the environmental laws hereinbefore mentioned or E.I.A. Notifications or meaning thereof, which are highly technical matters on which even the Expert Committee (Industry) Members have not seen eye to eye on occasions.
7.6 According to respondent No.3, it is an established fact that rival business interests in this very DI Pipe manufacturing industry have attempted even earlier through proxies to scuttle industries coming in the field, which would present a competition and break the monopoly which limited number of industries enjoy. It is contended that the petitioner has not claimed any personal damage or injury resulting to him from his grievances alleged and the claim of the petitioner that he is a public spirited person has been refuted by respondent No.3 in its affidavit-in-reply by stating that if the petitioner was a genuine and bonafide Public Interest litigant and not an interested and motivated proxy of anyone, he would not have attempted to mislead this Hon'ble Court by alleging that in B.K. Sharma's case (supra) this Hon'ble Court has recorded a finding that the Induction Furnace, which is one of the types of Foundries under Rule 32 of the Environment (Protection) Rules, 1986 (for short `the Rules') is `Foundry (Individual)' as contemplated by Entry 28 of the Schedule I to the E.I.A. Notification, 1994 and held that manufacture of DI Spun Pipe and DI Iron-cast (meaning DI Cast Iron Pipes) by using induction furnace involves foundry work and suppressed what followed the decision of this Hon'ble Court in B.K. Sharma Vs. Union of India and others (supra) and sought forthwith closure of Electrotherm's DI Pipe Industry.
7.7 It is stated that the petition involves highly technical matters decided by M.O.E.F. in consultation with its Expert Committee (Industry), as provided in the E.I.A. Notifications, and that the decisions of M.O.E.F. on merits are not subject to judicial review. Judicial review is of the decision making process and not of the decision itself.
7.8 According to respondent No.3, the petition involves disputed questions of facts or mixed questions of facts and law and therefore, it is not appropriate to be resolved in a petition under Art. 226 of the Constitution of India.
7.9 It is reiterated by respondent No.3 that petitioner has approached this Hon'ble Court on 10.05.2010, i.e. after gross delay after respondent No.3 commenced its industrial activities, and sought interim reliefs directing M.O.E.F. to forthwith suspend operation of E.C. granted to Electrotherm, directing G.P.C.B. to suspend N.O.C., C.C.A. and/or any other consent/permission granted to Electrotherm and to restrain Electrotherm from continuing its industrial operations and/or taking production. Electrotherm started construction of civil works in the late year 2004, applied on 18.12.2004 and received N.O.C. on 25.02.2005, received C.C.A. for Steel Plant on 10.11.2005 operative for six months, commenced production of DI Pipes in December 2005, received N.O.C. for production of DI Pipes and Sponge Iron on 13.09.2006, C.C.A. for Steel Plant was amended on 14.03.2007 operative for a period of five years, received C.C.A. for Sponge Iron and DI Pipes on 07.12.2009. Electrotherm had received E.C. on 20.02.2008 for production of Sponge Iron, Pig Iron and Captive Power Plant (CPP) and on 27.01.2010 for expansion of its Project. The E.C. recites that public hearing was waived under clause 7(ii) of E.I.A. Notification, 2006. Thus, by 27.01.2010 Electrotherm had received from appropriate authorities all required N.O.C./C.C.A./E.C., etc. The petitioner had not taken any action during this period, but filed the Petition on 10.05.2010 since when the Electrotherm's industry is running with all the required N.O.C./C.C.A./E.C. For any breach of the provisions of law governing obtaining prior N.O.C./C.C.A./E.C., law does not provide any civil consequences and subsequent grant of N.O.C./C.C.A./E.C. is not invalid on any ground that the industry had commenced commercial production without prior obtaining the same. According to respondent No.3, carrying on of production activities covered by the N.O.C./C.C.A./E.C. after obtaining the same is permitted by law notwithstanding any prior non-compliance as alleged. Moreover, the petitioner's conduct of filing the Petition after Electrotherm received N.O.C./C.C.A./E.C. is barred by delay, acquiescence and laches apart from the fact that it is on merits misconceived.
7.10 Respondent No.3 has denied that grant of E.C. by M.O.E.F. or N.O.C. and C.C.A. by G.P.C.B. to Electrotherm is illegal or in violation of any environmental law or E.I.A. Notification of the year 1994 or 2006 or in defiance of any direction issued by this Hon'ble Court in B.K. Sharm'a case. It has been further denied that the Project or products of Electrotherm emit/s hazardous environment pollutants. It is the say of the respondent that G.P.C.B. in its extension letter dated 02.07.2010 had directed Electrotherm to get the adequacy evaluation of the Environmental Management System (EMS) in Electrotherm's Plant and accordingly, Electrotherm got adequacy of EMS checked by National Productivity Council, Gandhinagar on 15/16.07.2010, and that NPC submitted its Report dated 29.07.2010 to the effect that all pollution control norms are well within the prescribed standards.
7.11 It is stated by respondent No.3 that G.P.C.B.'s Regional Office at Bhuj conducted three weekly inspections in July 2010 of the pollution control system at the Plant and submitted two reports recording that the pollution norms are within prescribed standards. It is stated that E.C. under the E.I.A. Notification was not required for all products mentioned in the N.O.C. (CTE) i.e. Consent to Establish dated 25.02.2005. It is further stated that Electrotherm's Pipe Project was not an industry falling within Schedule I to the E.I.A. Notification dated 27.01.1994, that it was not covered by Entry No.28 "Foundries (individual)" and that no electric arc furnace is used therein. Paragraph no.3(b) of the E.I.A. Notification, 1994 provided inter alia that nothing contained in the said Notification shall apply to any item falling under inter alia Entry No.13 of Schedule I, if the investment was less than Rs.100 Crore for new Projects and less than Rs.50 Crore for expansion/modernization in Projects. The contention of respondent No.3 is that therefore also, it was not necessary to obtain E.C. for Induction Furnace, Sinter Plant, Centrifugal Casting Machine (CCM) and DI Plant since cost of the Project was less than Rs.50.00 cr. E.I.A. Notification dated 27.01.1994 remained in operation till 14.09.2006 on which it was superseded subject to savings by the E.I.A. Notification, 2006, which was not in force when Electrotherm commenced commercial production of DI Pipes. E.I.A. Notification, 2006 has no retrospective effect. Paragraph No.12 of Appendix VI to the E.I.A. Notification of 2006 provides as follows:-
"12.
OPERATION OF E.I.A. NOTIFICATION, 1994 TILL DISPOSAL OF PENDING CASES:
From the date of final publication of this notification the Environment Impact Assessment (E.I.A.) Notification No.S.O.60(E) dated 27.01.1994 is hereby superseded, except in supercession of the things done or omitted to be done before such supercession to the extent that in case of all or some types of applications made were prior environmental clearance and pending on the date of final publication of this notification, the Central Government may relax any one or more provisions of this notification except the list of the Projects or activities requiring prior environmental clearance in Schedule I, or continue operation of some or all provisions of the said notification, for a period not exceeding one year from the date of issue of this notification."
7.12 According to respondent No.3 it is incorrectly stated in the site visit report that as per the E.I.A. Notification, 1994 installation of Induction Furnaces for production of D.I. Pipes needs E.C. which was not obtained and that installation of Induction Furnace was covered under Schedule I (item no.28). E.C. is not required for items enumerated in the Rules and was required only in respect of items enumerated in the Schedule I to the E.I.A. Notification, 1994. Listing of Induction Furnace in Entry No. 32 of Schedule I to the Rules was only for prescribing permissible standards of emission of environmental pollutants and has nothing to do with the requirement of E.C. Schedule I to the Rules contains 86 entries, whereas Schedule I to the E.I.A. Notification dated 27.01.1994 contains 30 entries of which Entry No.13(b) lists Electric Arc Furnaces and Entry No. 28 mentions Foundry (individual). There is no correlation between Entries in the Schedule to the Rules and those in the Schedule I to the E.I.A. Notification, 1994 to enable interpretation of an Entry in the Schedule to the E.I.A. Notification on the basis of an Entry in the Rules. "Foundry" means an establishment where metal is melted and liquid metal is poured into moulds for casting metal. D.I. Spun Pipes or Cast Iron Spun Pipes are cast by centrifugal casting process and are not foundry products. Foundry (individual) means a stand alone foundry and not a foundry, which is part of a composite unit. An Induction Furnace is used for holding molten metal at given temperature/s and such an Induction Furnace is not Foundry (individual). Electrotherm had applied to G.P.C.B. on 18.12.2004 for N.O.C. for its Steel Plant and the same was granted on 25.02.2005. C.C.A. for the Steel Plant was granted by G.P.C.B. on 12.11.2005 and the same was amended on 14.03.2007 valid for five years. G.P.C.B. granted to Electrotherm on 13.09.2006 N.O.C. for Sponge Iron and D.I. Pipes and that the grant of ex-post facto N.O.C. and C.C.A. by G.P.C.B. is legal and valid.
7.13 According to respondent No.3, site visit reports are misconceived in law to a large extent and it has been denied that the respondent authorities and particularly M.O.E.F. were required to have a site visit before granting E.C. or that E.C. recommended/granted by M.O.E.F. without site visit is contrary to law or invalid. It is further denied that respondent no.1 ignored the site visit report while recommending grant of E.C. to Electrotherm. E.C. was granted on 27.01.2010, much before the filing of the Petition on 10.05.2010.
7.14 It is stated by respondent No.3 that they have not committed any breaches of environmental laws and submit that the alleged breaches of environmental law do not entitle the petitioner to obtain the reliefs prayed for or any relief. It is denied that industrial activities for which clearance/consent/N.O.C. have been accorded to Electrotherm are hazardous to public health and/or environment.
7.15 Respondent No.3 has reiterated that the Petition is not a genuine or bonafide Public Interest Litigation for enforcement of public rights, duties and/or obligations, but is a malafide Petition sponsored by Electrotherm's rival business interests by setting up the petitioner as their proxy. Electrotherm is not engaged in industrial activities, which pose any threat to environment due to emission of hazardous environment pollutants. The petitioner's allegation to the contrary is totally vague, devoid of material particulars and unsubstantiated. Sec. 7 of the Environment (Protection) Act, 1986 provides that no person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed. There is no allegation in the petition that Electrotherm's pipe industry, operation or process discharges or emits or permits to be discharged or emitted any environmental pollutants in excess of the standards prescribed. The prescribed environmental norms are not absolute, but are directory and require substantial and not rigid compliance. As held by Hon'ble the Supreme Court in CERS Vs. Union of India and others (AIR 2000 SC 975) the need of the environment and the need of economic development are required to be balanced. As held by this Hon'ble Court in B.K. Sharma's case (supra) it would be proper and safer to apply the "Principle of protection" and the "Principle of Polluter Pays" keeping in mind the principle of "sustained development" and the "Principle of Inter-generation Equity". It is denied that industrial activities carried out by Electrotherm are hazardous to public and/or environment or that they require stringent observation of the measures stipulated by the respondents nos. 1 and 2. It is further denied that they have given a go by to the said environmental norms in granting necessary approvals for expansion of projects of Electrotherm or at all.
8. Contentions of the petitioner :
8.1 The main bone of contention of Mr. Yatin Oza, learned Senior Counsel appearing for the petitioner is that the environmental clearance dated 27th January, 2010 accorded by the Ministry of Environment and Forests, Government of India, pursuant to application preferred by respondent No.3 dated 20th February, 2008 - Annexure "I" to the petition is on the face of it illegal and in gross violation of the Notification dated 14th September, 2006 and the amended Notification of 2009 as well. Mr. Oza, learned Senior Counsel invited our attention to the application of respondent No.3 dated 20th February, 2008, which on bare perusal is with respect to expansion of Pig Iron Plant (150 to 350 TPD). Mr. Oza invited our attention to paragraph 4 of the said application wherein it has been stated by respondent No.3 that public hearing/public consultation meeting was held on 12th June, 2007. Mr. Oza submitted that the first expansion environmental clearance was accorded in favour of respondent No.3 dated 30th April, 2008. According to Mr. Oza, this is suggestive of the fact that the application for expansion of the plant was prior in point of time i.e. 20.2.2008 whereas the environmental clearance first in point of time was accorded on 30th April, 2008. According to Mr. Oza, while granting environmental clearance dated 27.1.2010, the authority concerned could not have said that public hearing for the existing plant was held on 12th June, 2007 and therefore, the same is exempted for the proposed expansion as per Section 7, clause (ii) of EIA Notification of 2006. According to Mr. Oza, public hearing took place when there was no environmental clearance accorded in favour of respondent No.3. Therefore, for the proposed expansion the public hearing which took place first in point of time would not cover so far as environmental clearance for expansion of the plant is concerned. To put it simply, after the public hearing dated 12th June, 2007, environmental clearance was granted on 30th April, 2008 and when application for further expansion in 2009 was preferred, the authorities ought to have once again given an effective public hearing before granting environmental clearance and could not have said that the public hearing dated 12th June, 2007 would even cover the request of respondent No.3 for second environmental clearance as a result of expansion of the unit.
8.2 Mr.
Oza further invited our attention to the Notification dated 14th September, 2006, more particularly Clause 7(ii), which reads as under:-
"7(ii) Prior Environmental Clearance (EC) process for Expansion or Modernization or Change of product mix in existing projects:
All applications seeking prior environmental clearance for expansion with increase in the production capacity beyond the capacity for which prior environmental clearance has been granted under this notification or with increase in either lease area or production capacity in the case of mining projects or for the modernization of an existing unit with increase in the total production capacity beyond the threshold limit prescribed in the Schedule to this notification through change in process and or technology or involving a change in the product mix shall be made in Form I and they shall be considered by the concerned Expert Appraisal Committee or State Level Appraisal Committee within sixty days, who will decide on the due diligence necessary including preparation of EIA and public consultations and the application shall be appraised accordingly for grant of environmental clearance."
8.3 Mr.
Oza thereafter invited our attention to the Notification of 2009, which provides as under:-
".......Following changes made through notification dated 2009 - after item "c" the following item shall be inserted, namely....."
Following changes made through notification dated 2009.
"'However, in case of expansion projects involving enhancement of production by more than 50%, holding public consultation shall be essential and no exemption in this regard shall be provided."
8.4 According to Mr. Oza, the changes effected through Notification of 2009 makes it very clear that in case of expansion of production by more than 50%, holding of public meeting/ consultation is mandatory and no exemption in this regard has been provided. According to Mr. Oza, when public hearing was undertaken on 12th June, 2007, people had no idea that in future respondent No.3 would go for further expansion of the unit by enhancing the production capacity and therefore, they had no occasion to lodge their objections so far as expansion part is concerned. According to Mr. Oza, during the course of public hearing dated 12th June, 2007, people opposed the very idea of respondent No.3 setting up such a unit as it would cause lot of pollution problems for the residents of nearby places. According to Mr. Oza, therefore the environmental clearance dated 27th January, 2010 is in gross violation of the Notifications issued by the Central Government.
8.5 Mr Oza contended that the decision to grant Environmental Clearance by respondent no.1 to respondent no.3 is ex-facie illegal, arbitrary, unjustified and unsustainable, in facts as well as in law. He submitted that respondent no.2 ought not have granted NOC/CCA permitting respondent no.3 to commence its industrial activities without the said respondent no.3 first obtaining Environmental Clearance from respondent no.1. The said act of respondent no.2 is in violation of directions issued by this Hon'ble Court. He drew our attention to the judgment of this Court in Special Civil Application Nos. 14460/2004, 14813/2004 and 14819/2004, where in paragraph 41 of the judgment while referring to the grant of Environmental Clearance by respondent no.1 i.e. Ministry of Environment and Forests it has been directed that the Ministry shall seek necessary clarification from the Expert Committee (industry) and the GPCB-respondent no.2 herein, shall not grant consent to operate for Ductile Iron Pipe Fittings and Ductile Iron Casting without prior Environmental Clearance and for Ductile Iron Spun Pipes and Ductile Iron Casting Pipes without such clarification from the Expert Committee (Industry).
8.6 Mr.
Oza further contended that the Regional Office at Bhopal of respondent no.1 conducted Site Visit on 14.09.2009/15.09.2009 and during the said visits several illegalities and breaches of environmental laws at the hands of respondent no.3 came to the notice of respondent no.1 for which vide letter dated 09.10.2009 urgent action as regards to the report was also sought for. In the said report the following acts of violation of Environmental Laws were enumerated :
CC & A does not show permission for manufacturing of Sponge Iron.
NOC for establishing Sponge Iron unit with capacity of 6000 MTPM and D.I. Pipes with 4000 MTPM was granted by the Gujarat Pollution Control Board on 13.09.2006.
PA i.e. respondent no.3, has not submitted valid copy of consent for Sponge Iron and D.I. units.
(iv) Sponge Iron I (3000 TPM) was commissioned in 2005. D.I. Pipe manufacturing unit and Sponge Iron II (3000 MTPM) was also commissioned in 2006 and October, 2008 respectively at the cost of Rs.30.49 crore.
(v) Two induction furnaces of 20 tones/heat capacity and four crucibles of 20 tones/heat were installed under 2005 which operated 7-8 heats per day as submitted.
(vi) As per EIA Notification, 1994 installation of induction furnaces and D.I. Pipes needs Environmental Clearance which were not obtained.
(vii) The installation of induction furnace is covered under Schedule-I (Item No.28) i.e. foundry (individual).
(viii) In addition, D.I. and Sponge Iron units were found in operation without valid consent.
(ix) It was also observed that Old Sinter Plant was also in operation without effective air pollution control system.
(x) GPCB has rejected CC & A application vide order dated 31.01.2009. The industry has reapplied for the CC&A, which was forwarded to HQ along with their report dated 28-7-2009. During visit, it is observed that they have installed DI Pipe manufacturing plant, having three numbers of Continuous Casting Machines (CCM). The first & second CCM were commissioned in October, 2006 as submitted whereas the third CCM has been commissioned recently in May, 2009 (Photo-3 & 4). Although PA claimed that the combined capacity of all the three CCM is 4000 MT/day but, production date of DI pipe reveals that the industry has exceeded consented limit during the months January, 09, February, 09, March, 09, April, 09, May, 09 and July, 09.
(xi) Although NOC of GPCB dated 13.9.06 indicates manufacturing of DI pipes to the tune of 4000 MTPM but does not indicate diameter size of pipes. It was observed that pipe of various sizes are being manufactured.
(xii) Later, the industry has obtained environmental clearance dated 20/02/2008 for manufacturing of 150 MT/day Pig Iron. The industry has been granted NOC (CTE) for the same by the Board vide order dated 30/04/2008.
(xiii) During visit, it has been observed that construction of the BF was going on and about 90% of the construction work is completed along with Sinter Plant (Photo-5). It is evident from the records that Sinter Plant which is in construction was not covered in earlier granted EC. PA submitted that they have applied for EC for third Blast Furnace having capacity 18600 MT/Month.
Compliance report of EC dated 20/02/2008 appears to be unsatisfactory and detailed report is being sent separately.
8.7 Mr.
Oza submitted that the findings of respondent No.1 would go to show that though respondent no.3 was required to obtain Environmental Clearance for Sponge Iron and Ductile Iron Pipes units, the same was not obtained. For Ductile Iron Pipes and Furnaces Environmental Clearance was required as the same are in nature of foundry works falling under Entry No. 28 of Schedule-I to EIA Notification, 1994. When respondent no.1 itself was clearly of the view that respondent no.3 had committed breach of environmental norms and that even the compliance of earlier granted environmental clearance was unsatisfactory, immediate remedial measures by closing industrial activities of the respondent no.3 ought to have been taken. However, despite clearly being of the view that respondent no.3 has committed severe violation of environmental laws by not obtaining necessary Environmental Clearance from respondent no.1 and NOC as well as CC & A from respondent no.2, respondent-authorities did not take any measures for preventing detriment to health and environment, but on the contrary recommended case of respondent no.3 for grant of environmental clearance for expansion of its steel project.
8.8 Mr.
Oza further contended that respondent no.1 ought not have recommended the case of respondent no.3-industry for grant of Environmental Clearance. The said respondent authorities could not have observed in the process of submission of case of the respondent no.3 that it is not a case of violation. Without conducting a fresh site visit, the respondent no.1 could not have recommended the case of the respondent no.3 without satisfying itself as to whether the environmental norms and requirements of EIA Notification are strictly complied with and the respondent no.3 now does not carry on its industrial activities which affect public health and environment. However, without ensuring strict compliance of environmental norms and EIA Notification by conducting fresh site visit, case of respondent no.3 has been recommended by the concerned officers of the respondent no.1 for grant of environmental clearance.
8.9 Mr.
Oza strongly contended that respondent no.1 ought not have recommended the case of respondent no.3 for grant of Environmental Clearance in face of serious breaches of environmental laws committed by the said respondent no.3 which pose great threat to health and environment. He submitted that respondent no.3 had not applied for Environmental Clearance which is a prerequisite condition stipulated in the EIA Notification, 1994 for a new project, under false pretext that Environmental Clearance is not necessary as project cost was less than Rs.50 crore, for Induction Furnace, Sinter Plant, Continuance Casting Machine and Ductile Iron Plant. He further submitted that the said reason given by respondent no.3 has been readily accepted by respondent no.1 while granting Environmental Clearance, completely ignoring Clause 3 (b) of the EIA Notification, 1994. Clause 3 (b) of the said Notification is set out hereunder :
"3. Nothing contained in this Notification shall apply to :
(a) xxx
(b) any item falling under entry Nos. 1, 2, 3, 4 ,5, 9, 10, 13, 16, 17, 19, *21*, 25 and 27 of Schedule-I if the investment is less than Rs.50 crore."
8.10 Learned counsel for the petitioner submitted that a bare perusal of the above referred clause shows that Entry No. 28 pertaining to foundry (individual) is not covered in the above exclusionary clause. In that view of the matter, irrespective of the cost of project, once the product was covered by the Schedule to the Notification, which was not kept out of the purview of the said Notification, by virtue of the exclusionary clause 3 (b), prior Environmental Clearance was mandatory. Even in the Site Visit Report of respondent no.3, it is categorically mentioned that Induction Furnace is covered under Item No. 28, Schedule-I and that for Induction Furnace and Ductile Iron Pipe Environmental Clearance was not obtained by the respondent no.3. He submitted that Induction Furnaces and Ductile Iron Pipe are foundries, within the meaning of Item No. 28 of the Schedule-I to the EIA Notification, 1994.
"FOUNDRY"
as per The Oxford Dictionary reads as under :-
"FOUNDRY"
Works for the casting of metals ;
The word "casting" has been defined and explained in the Encyclopedia of Americana as under :-
"CASTING is the process of producing a metal object of desired shape by pouring molten metal into a mould and allowing the metal to cool and solidify."
The word "CASTING" has been given the following meanings in Webster's dictionary.
1. To give particular shape to a substance by pouring in liquid or plastic form into a mould and letting or causing to harden without pressure.
2. Something that is formed by casting in a mould or form as a reproduction or copy in the metal or blast
3. Something that is cast in a mould; specifics; an object (of metal plast or glasses) cast.
In the book ''Principles of Metal Casting" authored by Richard W. Heine, Carl R. Loper, Jr. and Philip C. Rosenthal, a separate chapter for Ductile Iron is contributed. It has been specifically mentioned that Ductile Iron requires foundry operation, which are similar to those for other cast metals. Induction Furnaces are used to melt both ferrous and non-ferrous metals. There are several types of induction furnaces, but all create a strong magnetic field by passing an electric current through a coil wrapped around the furnace. The magnetic field in turn creates a voltage across and subsequently an electric current through the metal to be melted. The electrical resistance of the metal produces heat which melts the metal.
8.11 He submitted that as per EIA Notification, expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the Schedule to the said Notification shall not be undertaken without prior Environmental Clearance issued by the concerned authority in accordance with the procedure specified in the said Notification. Referring to a Certificate issued by the Central Excise Department he submitted that though no Environmental Clearance was granted by respondent no.1 for Sponge Iron Unit with production capacity of 6000 MTPM and Ductile Iron Pipes with production capacity of 4000 MTPM, respondent No.3 commenced the commercial production of Ductile Iron Pipes on and from 23.12.2005 i.e. much before 13.09.2006. Despite the said violation respondent no.1 subsequently granted Environmental Clearance to respondent no.3 in respect of expansion of its project at Village : Samakhiyali.
8.12 Mr.
Oza further submitted that when respondent no.1, having conducted site visits found severe illegalities and violation of environmental norms by respondent no.3, the same called for immediate closure of ongoing industrial activities and rejection of proposal for grant of Environmental Clearance for expansion. However, taking somersault from its earlier definite conclusion, respondent no.1 recommended the case of respondent no.3 for grant of Environmental Clearance as 'no violation case'. It is shocking to note that the very respondent-authority which earlier found grave illegalities committed by the respondent no.3 by violating environmental norms, changed its mind for the reasons best known to it, without there being any material change much less any change undertaken by respondent no.3 in improving the manufacturing process for eradicating /reducing emission of environmental pollutants to fit in line with the requirements of environmental norms and EIA Notification, and in that view of the matter the petitioner seeks indulgence of this Court in the matter of serious violation of Environmental Norms by respondent no.3 which pose threat to health and environment in and around Village : Samakhiyali.
8.13 Mr.
Oza further submitted that recommendation for grant of environment clearance to respondent no.3, shows that the same is a conditional one. He submitted that such conditional environmental clearance is nowhere envisaged. Environmental Clearance can be granted only when there is strict compliance of environmental norms and EIA Notification. Environmental Clearance cannot be granted subject to fulfillment of environmental norms and EIA Notification. The respondent authorities are enjoined with a statutory duty to see strict compliance of the environmental norms. In that view of matter, conditional environmental clearance in the nature of recommendation of the concerned officers of the respondent no.1 can not be granted for want of provision to grant such a conditional environmental clearance.
9. Submissions made on behalf of respondent No.3 9.1 Learned Senior Counsel Mr. S.B. Vakil appearing for respondent No.3 vehemently submitted that the Notifications relied upon by the petitioner dated 14th September, 2006, 11th October, 2007 and 19th January, 2007 are concocted and fabricated. According to Mr. Vakil, there is no such Notification available or published in the Gazette of India. The contention is that such a Notification must be published in the Gazette of India and only thereafter the same can be relied upon and can be termed as authentic.
9.2 Mr.
S.B. Vakil, learned Senior Counsel appearing for respondent No.3 vehemently submitted that the contention on behalf of the petitioner relying upon Notification dated 19th January, 2009 issued by the Ministry of Environment and Forests that in case of expansion project involving enhancement of production by more than 50%, holding of public consultation shall be essential and no exemption in this regard shall be provided, is without any merit. According to Mr. Vakil, the Notification dated 19th January, 2009 is only a draft Notification which proposed an amendment in paragraph 7, clause (ii) of the Notification dated 14th September, 2006. According to Mr. Vakil, thereafter the draft amendments as contained in the Notification S.O 195(E) dated 19th January, 2009 were taken into consideration by a Committee consisting of Additional Secretary, Ministry of Environment and Forests and other authorities and finally the Committee took a decision that the provision of paragraph 7, clause (ii) contained in the original Notification of 2006 be retained. The sum and substance of the submission is that the petitioner cannot rely upon something which was just a suggestion.
9.3 Mr.
Vakil also submitted that this petition is at the behest of rivals of respondent No.3, who are very much in to the same business and therefore lacking in bonafides. It is also contended by Mr. Vakil that Induction Furnace does not require any environmental clearance. Mr. Vakil also submitted that the Environmental (Protection) Act, 1986, the Environmental (Protection) Rules, 1986 or the Environmental Impact Assessment Notification 1986 does not provide any civil consequences for any action done in violation thereof. Section 15 of the Act provides for penalty for contravention of the provisions of the Act and the Rules, orders and directions made thereunder. Applying this principle, Mr. Vakil contended that any violation of requirements of environmental clearance would not entail any civil liability e.g removal of construction, demolition of plant, machinery or equipments installed in the factory including closure of the production process.
9.4 Mr.
Vakil further contended that the environmental clearance accorded for expansion of steel plant is dated 27.1.2010, whereas the application was preferred on 15.6.2010. Therefore, the question whether post-facto environmental clearance can be given depends upon the interpretation of the relevant provisions for the grant of environmental clearance. According to Mr. Vakil, permissibility of post facto permission/approval/clearance/sanction depends upon whether action in violation of the statutory duty deserves to be preserved by regularization. Mr. Vakil also contended that it is the production process, which substantially causes environmental policy. Assuming that the three stages i.e. (i) construction of civil work,
(ii) setting up of plant, machinery and equipment and (iii) commissioning of project for production were completed prior to obtaining environmental clearance by itself is not sufficient to order closure of the factory, more particularly when the factory has been granted permissions, NOC, CCA from GPCB and has been functioning without violating environmental norms to the satisfaction of policy controlling authority.
9.5 Lastly, Mr. Vakil submitted that the impugned environmental clearance dated 27.1.2010 itself provides that any appeal against the environmental clearance shall lie with the National Environmental Appellate Authority under Section 11 of the National Environment Appellate Act, 1997 and such an appeal has to be preferred within 30 days. According to Mr. Vakil, without resorting to such remedy available, the petitioner could not have preferred a public interest litigation challenging such environmental clearance.
10. It appears that when this matter was taken up for hearing on April 1, 2011, this Court thought fit to ask Central Pollution Control Board, to inspect the premises of respondent No.3 and submit its report to the Court. The order dated April 1, 2011 reads as under:-
"As the matter relates to an Environment Clearance granted by the Central Government, and in public interest, the question of impact of pollution in the area because of the establishment of the respondent No.3-Industry has been raised, the matter was earlier discussed.
Learned counsel, Mr. Vakil, appearing on behalf of the 3rd respondent-M/s. Electrotherm (India) Ltd. submitted that the 3rd respondent has no objection, if the Court directs the Central Pollution Control Board to inspect the premises and submit its report to the Court.
In the facts and circumstances, we direct the petitioner to implead the Central Pollution Control Board through its Chairman, Pollution Control Board, CGO Complex, Paryavaran Bhavan, Lodhi Road, New Delhi, as party respondent No.4.
Let notice be issued on the 4th respondent. Service by Speed Post is permitted in addition to the normal mode of service.
Post the matter on 21.4.2011 within ten cases."
11. The record also reveals that thereafter, the Central Pollution Control Board, West Zone Office, Baroda placed its report before this Court, wherein following observations have been made:-
"5.0 OBSERVATIONS 5.1 GENERAL Following observations were made during the inspection of M/s. Electrotherm (India) Ltd.
Out of the two rotary kilns one was in operation, all the four numbers of induction furnaces were in operation, steel rolling mill was in operation, out of two blast furnaces one was in operation, sinter plant was not in operation, ductile iron pipe manufacturing unit was in operation, out of two coal fired boilers one was in operation.
The industry is having Consolidated Consent & Authorisation (CCA) valid upto 26.07.2011 for the existing capacity.
The unit is under expansion process to enhance the existing capacity for various products for which Consent to Establish has been obtained from GPCB and Environmental Clearance (EC) obtained from MoEF, Govt. of India.
The industry is producing some of the products as per expanded capacity without obtaining valid Consent to Operate (CCA) from GPCB. The production details for the month of April 2011 obtained from the industry are given in Annexure-I(B).
The industry has carried out tree plantation within the periphery which is in growth phase at present.
Some of the internal roads within the plant premises are not metalled resulting in heavy suspended dust on these roads due to frequent movement of heavy vehicles. The industry has provided mechanised sprinklers at many locations besides manual sprinkling of water to suppress the dust suspension.
The unit had excessive water spray/sprinkling during the visit to suppress the dust which resulted in water stagnation at different locations (Annexure -V photograph No - 2 & 3) but at the same time not having proper drainage/collection system.
The raw materials such as iron ore, dolomite etc. are stored in open space without proper shed, leading to fine dust suspension in the ambient air.
The height of the stack attached to the coal crushing unit is about 18 m against the consented norm of 25 m.
The coal storage area is covered with shed and practising manual water sprinkling to minimize the fugitive emission. However, it is desirable to have mechanized water sprinkling system for better control.
As required under Environmental Clearance, the unit has not yet established on-line ambient air quality monitoring and also continuous stack monitoring facilities.
The industry reportedly has been monitoring ambient air quality at five locations on piece-meal basis now and then but not as per National Ambient Air Quality Standards, Environment (Protection) Rules, Seventh Amendment, Notified dated, 16.11.2009.
2. In para 6.0 results and discussion have been made and for rectification measures, recommendations have been made at para 7.0, as quoted hereunder :-
"6.0 RESULTS AND DISCUSSION From the field visit and monitoring results the following conclusions are drawn:
Ambient air quality was assessed in terms of three critical parameters viz. Particulate Matter (PM10), Nitrogen Dioxide (NO2) and Sulphur Dioxide (SO2). The results revealed that PM10 was exceeding the prescribed norms of 100 µg/m3 at all the three monitoring locations; however NO2 and SO2 values were found within the prescribed norms 80µg/m3.
The Ambient Noise Levels at all the three locations were found within the prescribed norms of 75 dB(A) in the day time (6.00 AM to 10 PM) and 70dB (A) in the night time (10.00 PM TO 6.00 AM).
The stack emission results for Particulate Matter (PM), Oxides of Sulphur (SOX) and Oxides of Nitrogen (NOX) in four stacks attached to rotary kiln, induction furnace, blast furnace and captive power plant were found within the prescribed GPCB norms.
The fugitive emission values near coal crushing area and product processing area shows that the monitored values are within the prescribed limit of 2000 µg/m3 (Env (Protection) Fourth Amendment Rules, 2008 Notified by G.S.R. 414 (E), Dated 30.05.2009) 7.0 RECOMMENDATIONS The unit should setup online continuous ambient air quality monitoring and recording facility as per EC at a location in consultation with Gujarat Pollution Control Board so that data can be accessed at any given point of time.
The unit should setup online stack gas analysers with recorders as per EC.
All the inner roads in the plant need to be metalled/concreted in order to avoid the air borne dust suspension during vehicular movement.
The raw material storage area should be fully covered. Also the raw material preparation area viz. screening, crushing units and transfer points should be covered and equipped with mechanical water sprinkling systems.
The area covered with water sprinkling system should be concreted and also provided with proper drainage system to drain the sprinkling water. Also industry should avoid excess water sprinkle for dust suppression.
The industry should develop thick green belt all along the plant boundary in order to mitigate the dust pollution.
The height of the stack attached to the coal crushing unit should be increased to 25 m in compliance with the consent condition with proper stack monitoring facility.
The approaching ladder attached to the 65 TPH FBC Boiler' stack needs modification for convenient monitoring. This may be done by putting spiral ladder instead of steep monkey ladder.
The unit should operate the manual ambient air quality monitoring stations as per the National Ambient Air Quality Standards, Environment (Protection) Rules, Seventh Amendment, Notified dated 16.11.2009.
Industry should stop excess production (expanded capacity) without valid consent to operate (CCA) from GPCB.
12. After Central Pollution Control Board submitted it's report, respondent No.3 by filing a further affidavit-in-reply clarified as under:-
12.1 That one out of the Rotary Kilns, one Blast Furnace and the Sinter Plant stated in the Report to be not in operation are for the Expansion Project and not the existing Project. It is stated that only one Coal Fired Boiler is required to be operated for running the existing Plant and the other Coal Fired Boiler is a standby Boiler, which on the date of C.P.C.B. inspection was under maintenance.
12.2 It was submitted that there are several sources, which contribute to the level of Particulate Matter in the Ambient Air e.g. vehicular emissions, industrial sources, road conditions, railway movement and other articles in that particular area causing dust emissions. The factor such as dust storm, high wind flow can also cause increase in the dust level in AAQ. Electrotherm factory is located on the National Highway No.8, where a large number of vehicles move towards Kandla Port and Mundra Port and return back after loading-unloading round the clock thereby causing significant contribution of RSPM to AAQ. There are a number of industries in the nearby area of Electrotherm's Plant and a Railway line passes nearby the Unit and contributes RSPM in AAQ of the area. Electrotherm's industry is located in the Kutch Region, which is known for high wind velocity and sandy soil characteristics. Sandy soil becomes airborne by high wind velocity in the area and contributes to the high RSPM in AAQ. It is for the first time by an Office Memorandum dated 06.04.2011 issued by the Government of India, Ministry of Environment and Forests (MOEF) that all mega projects including Integrated Steel Plants with a capacity of one million TPA (Tonnes per annum) and above, which have already been accorded Environmental Clearance, are required to comply with an additional condition of continuous monitoring of stack emissions as well as AAQ (as per notified standards) to be carried out and continuous records to be maintained. Before Electrotherm received Environmental Clearance (EC) on 20.02.2008 its existing capacity for the main products sponge iron and pig iron was 200 MT per day, which was expanded under the said EC to 350 MT per day or 1,26,000 MT per year, which is far below one million TPA required for application of the said Office Memorandum. In the (i) NOC received on 25.02.2005, (ii) CCA for Steel Plant received on 10.11.2005, (iii) amended CCA dated 14.03.2007 for the Steel Plant, (iv) CCA received on 07.12.2009 for sponge iron and DI pipes, (v) EC dated 20.02.2008 or (vi) EC dated 27.01.2010 (pp.224-231) for the expanded Steel Plant there was no requirement mentioned that Electrotherm should provide online continuous AAQ monitoring and recording facility. The recommendation that Electrotherm Unit should set up online continuous AAQ monitoring and recording facility as per EC appears to be in ignorance of the fact that the said Office Memorandum does not apply to Electrotherm Unit. The cost of providing online AAQ monitoring would be from Rs.40 lac to Rs.50 lac and the time required for installing the same would be about three months. Electrotherm has already set up four AAQ monitoring stations in consultation with G.P.C.B. and is regularly carrying out monitoring as per the guidelines of C.P.C.B./G.P.C.B.
12.3 It is further submitted by respondent No.3 that in Ann. I(A) to the Report of C.P.C.B. the existing capacity in MT/month, the proposed capacity meaning proposed expansion capacity in MT/month and total capacity of the expanded project in MT/month have been given. For the purpose of production of the expanded project Electrotherm has installed one Rotary Kiln, one Blast Furnace and one Sinter Plant. Electrotherm by its letter dated 08.06.2009 applied to GOI, MOEF for EC for expansion of its Steel Plant, which was granted on 27.01.2010. Electrotherm made an application dated 03.03.2010 for Consent to Establishment (NOC) u/Sec.26 of the Water Pollution Act and Sec.21 of the Air Pollution Act. G.P.C.B. granted Consent to Establishment (NOC) dated 03.01.2011. Electrotherm made an application dated 20.01.2011 for Consolidated Consent/ Authorization (CC&A) i.e. Consent to Operate to the Regional Officer, Regional Office, G.P.C.B., Bhuj, which the Regional Office forwarded to G.P.C.B.'s office at Gandhinagar and the same is pending. Further, the production of Sponge Iron and Blast Furnace (Pig Iron) in Ann. I(B) is within existing limits and in respect of these two items there is no production in April 2011 which can be said to be under proposed expansion. Pursuant to the grant of EC and CTE i.e. NOC Electrotherm carried out establishment of its Plant for expanded capacity of production by modifying the existing Plant. Electrotherm had not sought to establish expanded capacity of production by establishing a separate Plant as after establishment of expanded capacity of existing Plant by modernization, production was taken on modernized Plant. Though Electrotherm had as aforesaid applied for CC&A, which u/Sec.21(4) of the Air Pollution Act within four months of the making of the application. The production limit under the existing CC&A was inadvertently crossed without however any intention on the part of the Electrotherm to take production under the expanded limit without receiving CC&A.
12.4 It is the say of respondent No.3 Electrotherm that they had constructed about 3000 mts. length of RCC roads in the Plant premises and after inspection and recommendations of National Productivity Council Electrotherm constructed additional 1500 mt. RCC road. After the present recommendations of C.P.C.B. Electrotherm has planned to construct within three months internal RCC roads between its Captive Power Plant to Sponge Iron Plant. Electrotherm has also provided mechanized water sprinkling system along both the sides of the road. Electrotherm will take particular care to avoid excessive water spray/sprinkling which may cause water stagnation. According to them if water spray/sprinkling is properly carried out without resulting into excessive water spray/sprinkling, no drainage for draining sprayed or sprinkled water on the internal roads may be necessary. On RCC roads water is required to be sprinkled or sprayed only for clearing and not for settling dust. For rain water drainage Electrotherm has provided effective drainage system. According to them, they had already developed green belt in 25 Hectares area in the Plant premises. Electrotherm is also conducting tree plantation programmes in nearby villages. Recently, during the occasion of World Environment Day on 05.06.2011 Electrotherm planted 3000 trees of local and mixed species as per C.P.C.B. guidelines. Electrotherm carries out regularly every year this kind of tree plantation drives. Electrotherm has provided three covered sheds for storage of raw material viz. coke and coal and two fully covered storage jars for storage of ferro alloys and fluxes. Electrotherm also installed mechanized stationary type water sprinkling system in the raw material storage area. In all Steel Plants Iron Ore and Dolomite, which are brought straight from the mines in huge quantities are stored in open space and not under any shed. These raw materials are transported by trucks and unloaded in the open storage area. However, transport of these raw materials to the factory is required to be done by huge JCB and Pay Loaders. Storage of these raw materials under sheds would hinder the loading and unloading operations.
12.5 It is further submitted that Electrotherm has started the work of increasing the height of the stack attached to the Coal Crushing Unit to 25 mts. Electrotherm would provide simultaneously proper stack monitoring facility. The approaching ladder attached to the 65 TPH (Tonnes Per Hour) Fluidized Bed Combustion Boiler Stack in the submission of Electrotherm does not need modification by putting spiral ladder instead of steep monkey ladder. The ladder is meant only to approach the window from which stack smoke samples are collected once in a week. There is no requirement of EC, CTE or CC&A to provide a spiral ladder for the Stack. The monkey ladder is convenient and safe to climb up and there has been no accident resulting from the use of the monkey ladder. Electrotherm has provided on line Stack Monitoring Systems in all major Stacks and monitors particulate matter and gases in the stack as per the Notification.
13. Discussion and findings:
Before adverting to the main issue in question, we would like to deal with the common contention canvassed by all the respondents as regards alternative remedy available to the petitioner in the form of an appeal before the National Environmental Appellate Authority under Section 11 of the National Environmental Appellate Act, 1997. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of the apex Court in A.V Venkateswaran, Collector of Customs Vs. Ramchand Sobhraj Wadhwani & anr. - AIR 1961 SC 1506, which still holds the field are quite apposite:
"The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus preeminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."
In Harbanlal Sahnia & anr. Vs. Indian Oil Corporation Limited and ors. (2003) 2 SCC 107, enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, the apex Court observed thus:
"........that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice, or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged."
We are of the opinion that on the facts of the present case, more particularly when petition is of the year 2010 and notice was issued upon the respondents and when they have appeared and have opposed the petition by filing affidavit-in-reply, now at this stage it would be unreasonable to say that the petitioner has an alternative efficacious remedy before the National Environmental Appellate Authority under Section 11 of the National Environmental Appellate Act. We thus, reject the preliminary contention in this regard and proceed further to examine the matter on its own merit.
14. Having heard learned counsel for the respective parties and having gone through the materials on record, we find that the following facts are not in dispute.
(a) Respondent No.3 - Electrotherm set-up a steel plant at village Samakhiyali for manufacturing products like Sponge Iron, Ductile Iron Pipes, Pig Iron in Blast Furnace, Steel Rolling Mill, M.S. Billets / Bars, Stainless Steel Billets, Alloy Nickel etc. in the year 2005. This is apparent from the fact that NOC for establishing Sponge Iron unit with capacity of 6000 MTPM and Ductile Iron Pipes with 4000 MTPM was granted by GPCB on 13th September, 2006.
(b) As per EIA Notification 1994, installation of Induction Furnace and D.I Pipes needs environmental clearance from the Ministry of Environment and Forests, Government of India, as Induction Furnace is covered under Schedule I (Item No. 28) i.e. Foundry.
(c) Respondent No.3 started its unit in the year 2005 for manufacture of Pig iron, Blast Furnace having capacity of 5833 MT/Month. Record reveals that the first NOC (CTE) in this regard was granted dated 25th February 2005. Two induction furnaces of 20 tons/heat capacity each and four crucibles of 20 tons/heat each were also installed during 2005.
(d) It appears that for the first time environment clearance was accorded by the Government of India, Ministry of Environment and Forests vide order dated 20th February 2008 and that too pursuant to the application preferred by respondent no.3 for expansion of Pig Iron Plant (150 to 350 TPD) with Captive Power Plant (24MW) and WHRB (6 MW). Before according this environment clearance, public hearing/public consultation was held on 12th June 2007 and, thereafter, the environment clearance was granted..
(e) Record further reveals that thereafter once again respondent no.3 applied with the Government of India, Ministry of Environment and Forests for environment clearance vide their Application dated 8th June 2009, and while according environment clearance vide order dated 27th January 2010, the authority concerned stated in the order that public hearing for the existing plant was held on 12th June 2007 and, therefore, for the purpose of granting environment clearance pursuant to the application preferred by respondent no.3 dated 8th June 2009 for expansion of steel plant, the public hearing is exempted as per Section 7(ii) of EIA Notification 2006.
(f) The EIA Notification dated 14th September, 2006 as referred to above provides that all applications seeking prior environmental clearance for expansion with increase in the production capacity beyond the capacity for which prior environmental clearance has been granted under this Notification or with increase in either lease area or production capacity in the case of mining projects or for the modernization of an existing unit with increase in the total production capacity shall be made in Form I and such application shall be considered by the concerned expert appraisal committee or State level expert appraisal committee within sixty days, who will decide on the due diligence necessary including preparation of EIA and public consultations.
15. So far as Notification dated 9.1.2009 is concerned, we are convinced that the same was a draft Notification wherein an amendment was suggested in paragraph 7(ii) of the earlier Notification dated 14th September, 2007 to the effect that in case of expansion projects involving enhancement of production by more than 50%, holding of public consultation shall be essential and no exemption in this regard shall be provided. We have noticed that the amendments as suggested by way of draft Notification were taken into consideration by a Committee constituting of (1) Additional Secretary, Ministry of Environment and Forests, (2) Chairman, Central Pollution Control Board, (3) Advisor (Retd.), Ministry of Environment and Forests, Government of India, (4) Member Secretary (Retd.), Central Pollution Control Board, (5) Advisor, Ministry of Environment and Forests, Government of India, and (6) Director, Ministry of Environment and Forests, Government of India, who in turn gave their report dated 30th October, 2009. In the report, they took into consideration the amendment which was suggested referred to above in paragraph 7(ii) of the earlier Notification of 2006 and the Committee in turn offered their comments as under:-
"Comments :
i. Everybody tries to show that it is less than 50% and avoid the public consultation. The expanded product may be more hazardous product then even 10% increase is dangerous. There are some products, the production may be in kgs, but the pollution load that it generates will be far more than that of a product that produces tonnes. This was encountered while we are in task force committee APPCB. Therefore, this must not be included and thus, all such expansions shall hold public consultation before Expert Committee process.
This amendment will only work, if the proposed amendment in para 2, after sub-para (iii) is deleted.
What about the impact of production increased less than 50% ? Do not they have any impact ?
The project proponents when they submit the proposal for Environmental Clearance at the stage of TOR should mention the full capacity of the project and they may suggest phase wise implementation. In such a case the public consultation could be held as per the procedures laid down for the full capacity of the project.
(b) They could implement the clearance given in phases as in most of the power projects and they need not got to the public consultation again of the remaining phases.
(c) It is also to be noted that Environmental Clearance is given for a specific period and the validity is five years. The project proponents may be requested to submit an EMP and revised modelling exercise based on the post project monitoring database taking in to account the development and establishment of other industries within the impact area during the five years if the expansion is not taken up with the EC validation period of five years. This is to ensure that proper safeguards could be introduced in regard to pollution control systems, so that the resultant ground level concentrations remain within the stipulated limits.
(d) Holding of public consultation could then be recommended if the above mentioned studies indicate a requirement due to high levels of ground level concentrations.
However, in case of expansion projects involving enhancement of production up to 50%, holding of public consultation shall not be required. For projects involving enhancement of production capacity beyond 50% exemption in Public Consultation can be considered by concerned SEAC or EAC for cases which don't involve additional land acquisition and pollution load, with adequate mitigatory measures to achieve the ambient environmental standards. In case of on-site expansion even more than 50% of production capacity where adequate pollution mitigation measures taken, no public consultation is required.
This can be seen in conjunction with the amendment given in para 7(ii). There is a contradiction in statements that EC is not required for no change in pollution load, whereas para 7(ii) insists on a public hearing for more than 50% increase in production capacity.
This defeats the very purpose of setting the industry in a notified industrial complex. Further if the exemption is really to go away for some reasons then the possibility of state authorities' role in objectively deciding the need of public hearing can be stipulated.
If para (I) of the proposed amendment were to be notified then the above amendment would be in direct contradiction of para (I).
In regard to para 7(ii) relating to prior environmental clearance (EC), the process for expansion/ modernization or change of product mix in existing projects, public consultation shall be essential only for new projects and not for existing projects. Accordingly, the Clauses should be amended to state that respective of percentage of enhancement of production a New EC may be insisted upon, however doing away with public consultation.
As regards expansion projects involving enhancement of production by more than 50% necessitating public consultation, it is proposed that the insertion should altogether be deleted/ removed as in any case if the proposal does not add to the pollution load and or additional water and or additional land; it would be illogical to impose restraint on enhanced production.
The decision on whether a public consultation is required depends on the project or activity. The decision of whether public consultation is needed or not needed should be left to the EAC or SLEAC rather than putting a mandatory condition of expansion beyond 50% as is the case in the 2006 EIA notification. This para should be deleted.
This would be in conflict with the proposed amendment at Para2, sub-para(iii). Moreover, this provision will only delay modernization/ cleaner technology implementation programs in existing projects.
Industries located in Notified Petrochemicals Complex area may be excluded from Public Hearing as such units are falling in the approved and dedicated industrial belt, intended for the growth of industries.
Nevertheless in the event of non-acceptance of Amendment No.(1), the last para be modified as under: "However in case of expansion projects involving enhancement of production, local public consultation restricted to the villages/ population involved in the additional land intake, if any, shall be essential and undertaken.".
This clause would be made applicable only for Chemical manufacturing companies who are mandated to obtain environmental clearance as per main Notification. It should not be applicable for expansion of infrastructure such as Chemical warehouses, Chemical storage installations, Chemical transfer Pipelines (Outside Factory) etc.
(b) The meaning of word "Public Consultation" should be clarified. Does it mean public hearing ?
In para 7 sub-para(ii) : should add at end "However Expert Appraisal Committee may exempt in some specific cases depending upon the significant impact on environment".
In the final analysis, the Committee suggested as under:-
"Analysis :
The intention of this amendment is to appraise only those projects which cause significant impacts and avoid time delays. However during the discussion it was brought out even within the same activity 50% means different for different base capacities and ultimately it may not serve the purpose. In addition, in certain sectors even very small quantity expansion would create environmental problems. Further other than industry and mining sector there is a problem of quantifying activities in terms of capacities. If the intention of the amendment is to appraise only the projects with significant impacts, then merely specifying a limit of more than 50% for the production enhancement will not serve the purpose.
Recommendation :
The existing provision as contained in the original Notification of 2006 be retained."
16. Thereafter, the Ministry of Environment and Forests issued a final Notification dated 1st December, 2009, which was published in the Official Gazette of India, and the final notification does not contain any amendment as suggested earlier by way of a draft. Such being the position, the picture that emerges is that Paragraph 7(ii) of the Notification dated 14th September, 2006 issued by the Ministry of Environment and Forests remains unaltered. However, what is important so far as the present case is concerned, is the final analysis drawn by the Committee of experts that if the intention of the amendment is to appraise only the projects with significant impacts, then merely specifying a limit of more than 50% for the production enhancement will not serve the purpose. On the respondent No.3's own saying the production capacity came to be enhanced upon expansion of the unit by more than three times. This will definitely have a very significant impact so far as environment is concerned and we have no doubt in this regard.
17. It is difficult for us to appreciate the contention of Mr. Vakil that plain reading of paragraph 7(ii) of the 2006 Notification merely suggests that whether to give public hearing/public consultation would be within the discretion of the authority. We do not find any merit in the contention that public hearing/public consultation as provided in paragraph 7(ii) of the 2006 Notification is directory and not mandatory.
18. The facts to a certain extent have disturbed us for the simple reason that respondent no.3 set-up its unit of steel plant in the year 2005 and started operating the same fullfledge. However, till 2008 they had no environment clearance and it is only for the first time vide order dated 20th February 2008 environment clearance was granted and that too for expansion. Subsequently, once again in 2009, they applied for environment clearance as they proposed to increase the production capacity almost three times the existing capacity, for which also environment clearance was granted but without giving any public hearing or public consultation.
19. Thus, the only question for our consideration is as to whether the environmental clearance dated 27.1.2010 can be termed as illegal in the absence of public consultation or public hearing as mandatorily provided by Notifications dated 2006. We agree with learned Counsel Mr. Oza that there is a basic flaw in the environmental clearance granted in favour of respondent No.3. It is apparent that when public hearing took place in the year 2007, the same was on the basis of the first application which respondent No.3 had preferred for expansion of the steel plant. Objections were raised by the persons concerned. However, when environment clearance came to be granted vide order dated 27th January 2010 pursuant to the second application dated 8th June 2009 preferred by respondent no.3 for enhancing the production capacity, the requirement of public hearing/public consultation was waived by the authority on the assumption that in the year 2007 public hearing was already undertaken. It is undisputed that in the year 2007 when the public hearing was given, the objections and suggestions were taken into consideration by the authority and environment clearance was accorded in the year 2008 but, thereafter, when the second application was preferred dated 8th June 2009 for enhancing the production capacity by more than double, people were not made aware of this proposal of respondent no.3 and the authority proceeded to accord environment clearance waiving public hearing.
20. While it is true that the nature of the public hearing may not be in the nature of an adjudicatory hearing, one cannot lose 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.
21. In a very recent pronouncement of the Supreme Court in the case of Lafarge Umiam Mining Private Limited; T.N.Godavarman Thirumulpad v/s. Union of India and others, reported in (2011)7 SCC 338, the Supreme Court in so many words in paragraph 122(xiv) has observed as under :
"The public consultation or public hearing as it is commonly known, is a mandatory requirement of the environment clearance process and provides an effective forum for any person aggrieved by any aspect of any project to register and seek redressal of his/her grievances."
Taking into consideration the importance of public hearing and also taking into consideration the decision of the Supreme Court in the case of Lafarge Umiam Mining Private Limited Vs. Union of India (supra), we are left with no other option but to declare that the environmental clearance dated 27th January, 2010 is illegal and not tenable in law. We therefore set aside the environmental clearance dated 27th January, 2010 granting liberty to respondent No.3 to once again apply with the Ministry of Environment and Forests, Government of India for fresh environmental clearance on the basis of their earlier proposal dated 8th June, 2009 for expansion of the unit. Upon such application being preferred by respondent No.3 for environmental clearance, respondent No.1 shall consider the same in accordance with law by following the procedure as prescribed under the Notification dated 14th September, 2006. Since we have set aside the environmental clearance dated 27th January, 2010, the respondent No.3 shall stop the operation of the entire plant and shall start operating only after fresh environmental clearance is accorded in their favour by the Ministry of Environment and Forests, Union of India.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B.Pardiwala, J.) FURTHER ORDER After this order is passed, Ms Acharya, the learned advocate appearing on behalf of the private-respondent prays for stay of operation of our order.
In view of the order being passed above, we find no reason to stay our order. Prayer is refused. However, certified copy of the order be handed over to the concerned respondent in the course of this day, if applied for.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B.Pardiwala, J.) FURTHER ORDER In the morning, after delivery of the judgment, Ms. Acharya, the learned Advocate appearing on behalf of the respondent prayed for stay of operation of our order and we refused such prayer. Subsequently, Mr. Vakil, the learned Senior Advocate appearing on behalf of the said respondent had mentioned the matter before rising of the Court in the afternoon pointing out that the plant involved which manufactures Structural steel, DI pipe, Alloy steel and other related products requires minimum ten days' time for cooling down and it cannot be abruptly shut down, and in the event of stoppage of either electricity or water supply, there are chances of major breakdown/blasts causing severe damage to human lives and property.
In view of such facts, we modify our earlier stay order to the extent that by virtue of our order, there should not be any new production from today and the plant of the respondent should be shut down after complying with all technical formalities required for shutting down such plant. However, at any rate, the plant should be completely shut down within ten days from today. GPCB and the Union of India are directed to see that except shutting down the plant pursuant to our earlier order, no new production is made henceforth unless the respondent obtains appropriate orders from the higher forum.
The certificate issued by Chartered Engineer placed before us be kept with the records.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B.
Pardiwala, J.) */Mohandas Top