IMPORTANT POINT
The main legal point established in the judgment is that the exemption granted for the removal of ordinary earth for linear projects was found to be arbitrary and violative of Article 14 of the Constitution of India.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. These appeals take exception to the judgment and order dated 28th October 2020 (for short, ‘the impugned judgment’) passed by the National Green Tribunal, Principal Bench, New Delhi (for short, ‘the NGT’). There is also a challenge to the order dated 24th December 2020, by which, the NGT rejected the review petition filed by the appellant for seeking review of the impugned judgment.

2. A notification was issued on 14th September 2006 (for short, ‘the first EC notification’) by the Ministry of Environment and Forests (for short, ‘MoEF’) in exercise of powers under subsection (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 (for short, ‘the EP Act’) read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 (for short, ‘the EP Rules’). Clause 2 of the first EC notification is material, which reads thus:

“2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:

(i) All new projects or activities listed in the Schedule to this notification;

(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;

(iii) Any change in product – mix in an existing manufacturing unit included in Schedule beyond the specified range.”

3. The notification provided that the projects falling under categories A and B set out in the Schedule to the notification will require prior Environmental Clearance (EC) from the concerned Regulatory Authority. The Regulatory Authorities for different projects have been named in clause (2) of the first EC notification. For the A category, the Central Government in the MoEF was named as the Regulatory Authority. For projects in the B category, the State Environment Impact Assessment Authority (for short, ‘SEIAA’) was named as the Regulatory Authority. Various procedural aspects regarding applying for a grant of EC, its processing, etc., have been incorporated in the first EC notification. There were subsequent modifications to the first EC notification. Another notification was issued on 15th January 2016 (for short, ‘the second EC notification’), by which the first EC notification was partly modified. Clause 7B and Appendix-IX were added to the first EC notification, providing for an exemption to specific categories of projects from the requirement of obtaining EC. Item 6 in the said Appendix-IX reads thus:

“Appendix-IX

Exemption of certain cases from requirement of Environmental Clearance

The following cases shall not require prior environmental clearance, namely:

.. .. .. .. .. .. .. .. .. .. .. .. .. ..

.. .. .. .. .. .. .. .. .. .. .. .. .. ..

6. Dredging and de-silting of dams, reservoirs, weirs, barrages, river, and canals for the purpose of their maintenance, upkeep and disaster management.

.. .. .. .. .. .. .. .. .. .. .. .. .. ..”

Though the NGT struck down a part of the second EC notification, Appendix-IX was not touched.

4. In the Original Application subject matter of these appeals, the challenge before the NGT was to the notification dated 28th March 2020 (for short, ‘the impugned notification’), which modified earlier EC notifications. Appendix IX to the second EC notification provided for ex