Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Devan Ramachandran, J.
M/s.Calicut Landmark Builders and Developers of India [P] Ltd. – Petitioner
Versus
Shaji A.K. and ors. – Respondents
WP(C) No. 30399, 32797, 35871 of 2023
Decided On : 08-02-2024
Environmental Protection - Environment (Protection) Act, 1986 - [Section 2, Section 3, Section 5, Section 7, Section 8, Section 9, Section 10, Section 11, Section 12, Section 15, Section 16, Section 17, Section 18, Section 19, Section 20, Section 21, Section 22, Section 23, Section 24, Section 25, Section 26, Section 27, Section 28, Section 29, Section 30, Section 31, Section 32, Section 33, Section 34, Section 35, Section 36, Section 37, Section 38, Section 39, Section 40, Section 41, Section 42, Section 43, Section 44, Section 45, Section 46, Section 47, Section 48, Section 49, Section 50, Section 51, Section 52, Section 53, Section 54, Section 55, Section 56, Section 57, Section 58, Section 59, Section 60, Section 61, Section 62] - The court analyzed the actions of the State Environment Impact Assessment Authority (SEIAA) and the National Green Tribunal (NGT) in relation to the issuance and subsequent cancellation of an Environmental Clearance (EC) for a construction project. The court found that the SEIAA had acted irregularly by granting the EC without the recommendation of the State Expert Appraisal Committee (SEAC) and by allowing the Administrator to issue the EC, which was beyond their authority. However, the court also considered the practical implications of setting aside the EC, including the completed construction and the investments made by third parties. As a result, the court vacated the NGT's order setting aside the EC and modified the directions related to environmental compensation and corporate environmental responsibility. The court also set aside the NGT's directions regarding the members of the SEIAA, finding that their actions were inadvertent and did not warrant further punitive measures. The court emphasized the importance of enforcing the conditions of the EC and ensuring compliance by the Project Proponent. The judgment was issued based on the specific circumstances of the case and was not intended to set a precedent.
Fact of the Case:
The case involved a dispute over the issuance and subsequent cancellation of an Environmental Clearance (EC) for a construction project by the State Environment Impact Assessment Authority (SEIAA). The National Green Tribunal (NGT) set aside the EC and issued directions related to environmental compensation and the conduct of the SEIAA members. The case also involved third parties who had invested in the construction project.
Finding of the Court:
The court vacated the NGT's order setting aside the EC and modified the directions related to environmental compensation and corporate environmental responsibility. The court also set aside the NGT's directions regarding the members of the SEIAA, finding that their actions were inadvertent and did not warrant further punitive measures. The court emphasized the importance of enforcing the conditions of the EC and ensuring compliance by the Project Proponent.
Issues: The main issues included the irregular issuance of the EC by the SEIAA, the practical implications of setting aside the EC, and the actions of the SEIAA members. The court also considered the interests of third parties who had invested in the construction project.
Ratio Decidendi: The court found that the SEIAA had acted irregularly in granting the EC without the recommendation of the State Expert Appraisal Committee (SEAC) and by allowing the Administrator to issue the EC, which was beyond their authority. However, the court also considered the practical implications of setting aside the EC, including the completed construction and the investments made by third parties. As a result, the court vacated the NGT's order setting aside the EC and modified the directions related to environmental compensation and corporate environmental responsibility. The court also set aside the NGT's directions regarding the members of the SEIAA, finding that their actions were inadvertent and did not warrant further punitive measures.
Final Decision: The court vacated the NGT's order setting aside the EC and modified the directions related to environmental compensation and corporate environmental responsibility. The court also set aside the NGT's directions regarding the members of the SEIAA, finding that their actions were inadvertent and did not warrant further punitive measures. The court emphasized the importance of enforcing the conditions of the EC and ensuring compliance by the Project Proponent. The judgment was issued based on the specific circumstances of the case and was not intended to set a precedent.
JUDGMENT :
The universally accepted and endorsed principles and doctrines of environmental protection are not a mere claptrap, or a matter of mere verbal expression; but are, in fact, an inviolable component of social engineering, with an imperative requirement for it to be enforced and implemented to its fullest warrant, in intent and spirit.
2. The Environment (Protection) Act, 1986 (for short 'the EP Act') begins stating its unexpendable tenet, that it is intended to provide for the protection and improvement of the environment; and that it is imbued by the decisions taken at the United Nations Conference on Human Environment, held at Stockholm in June, 1972, to which India is a signatory.
3. The world is rapidly changing, with the behaviour and designs of nature increasingly becoming difficult for humans to comprehend or to plan. Laws have generally been anthropocentric; but it is now increasingly recognised that it has to pave for “Earth Jurisprudence” or “Greater Jurisprudence”. The essential balance between the various components, which includes humans as merely one of it, is something that is now absolutely essential and unavoidable — lest it befall even the deracination of our race. Any developmental activity has to be accepted as being subservient to the larger interest of the survival of the planet; with the thought that this generation holds the treasures of nature for the next one.
4. This Court has thought it essential to start this judgment with the afore exordium because, among the facts presented in these cases, is virtually conceded that, while the statutory Regulators have acted, many of the essential attributes of the imperative Regulatory scheme have been either violated or not complied with — either inadvertently or otherwise.
5. First, a backdrop of the essential facts.
6. The controversy in these cases revolves around a large construction made by Calicut Landmark Builders and Developers of India Private Limited (for short, “Project Proponent”). It discerns from the pleadings and materials on record that the “Project Proponent” obtained a statutory Environmental Clearance (EC), dated 12.03.2020, from the State Environment Impact Assessment Authority (SEIAA) and was continuing with the construction, when Sri.Shaji A.K., who is stated to be a committed environmental conservationist, filed Appeal No.3/2019 before the National Green Tribunal (Southern Zone) (for short, 'NGT') on 28.12.2021. He singularly alleged that the “EC” was illegal, producing it as Annexure A1; with an adscititious plea for a declaration that the “Project Proponent” did not obtain any right to obtain ex post facto Environmental Clearance in violation of the Environmental Impact Assessment Notification, 2006 (for short 'EIA Notification').
7. It was also pleaded and argued by him that the Administrator of the 'SEIAA' had no authority to issue the 'Environmental Clearance' pointing out that it was so done; thus finally requesting that the “Project Proponent” be declared to be bound by the “Polluter Pays Principle” and resultantly ordered to pay Environmental Compensation for damage and pollution, to be assessed by the said Tribunal.
8. Pertinently, even though Sri.Shaji filed his appeal before the ‘NGT’ on 28.12.2021, no interim orders were issued; and his learned counsel – Sri.Harish Vasudevan, concedes that the records do not indicate whether the matter was moved for such purpose.
9. That being so, on 11.09.2023, the 'NGT' issued its final order, allowing the appeal of Sri.Shaji A.K.; thus setting aside the 'Environmental Clearance', and then went on to issue a slew of directions. Since the pivot of case is on the merits of such directions, I deem it necessary to extract the same ut infra, for a full reading:
53. In view of the detailed discussions made above, we
I. Set aside the Environmental Clearance dated 12.03.2020 granted by the SEIAA – Kerala
II. The SEIAA – Kerala is directed to stop the project with immediate effect and we direct the proj
AI
The court emphasized the importance of enforcing the conditions of the Environmental Clearance (EC) and ensuring compliance by the Project Proponent. The judgment was issued based on the specific cir....
Requirements of prior Environmental Clearance - It is a trite law that a writ cannot be issued on ground of violation of principles of natural justice if only one conclusion is possible in a given si....
Point of law: Basis of categorisation of projects and activities under the EIA notification lies in the expanse of the built-up area of the proposed project.
As long as SEIAA's decision to grant Environmental Clearances was made before the expiration of its term, the subsequent issuance remains valid despite any delays in communication.
Legislature intended to create a specialist body in the form of National Green Tribunal to consider the validity of orders granting or rejecting applications for EC. The remedy of an appeal with the ....
The main legal point established in the judgment is that prosecution under the Environment (Protection) Act, 1986 may be considered an abuse of process of law if environmental clearance is granted af....
Projects with plinth-level construction before EIA 2004/2006 amendments exempt from clearance; NGT applications time-barred beyond 6 months from knowledge; expert remediation assessments prevail over....
The Environmental Impact Assessment (EIA) 2006 Notification's General Conditions do not apply to building and construction projects listed as Items 8(a) and 8(b), affirming the intent for state-level....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
