IMPORTANT POINT
The requirement for prior environmental clearance under the 2006 notification applies to constructions exceeding 20,000 sq.mts., and subsequent notifications cannot be applied retrospectively.

JUDGMENT :

(ZIYAD RAHMAN A.A., J.) 

The petitioner, a non-profit organization primarily focussed on healthcare, has approached this Court being aggrieved by the stand taken by the 2^nd respondent- The Kerala Pollution Control Board, insisting on environmental clearance for the constructions made by the petitioner for granting Consent to Operate. The reliefs sought by the petitioner are as follows:

“i. Issue a writ declaring that the petitioner is exempted from procuring prior Environmental Clearance as per the amended provisions of the Environmental Impact Assessment Notification , 2006 and the insistence of the Pollution Control Board to obtain E.C is not a legal requirement;

ii. Issue a writ declaring that the 2nd respondent is bound to grant consent to operate to the petitioner without insisting for Environmental Clearance;

iii. Issue a writ of mandamus directing the 2nd respondent to issue consent to operate to the petitioner;

iv. Issue a writ of mandamus directing the 1st respondent to issue Environmental Clearance to the petitioner v. Issue a writ of mandamus directing the 3rd respondent to issue renewed Certificate of Registration for the Hospital of the petitioner Trust;

vi. Dispense with the filing of English translation of vernacular documents;

vii. Issue such other Writ, Order or direction as this Hon’ble Court may deem fit in the facts and circumstances of this case.”

2. The facts that led to the filing of this writ petition are as follows:

As the petitioner intended to establish a speciality hospital for women and children, they obtained a building permit from the 3^rd respondent Grama Panchayat, as evidenced by Ext.P1, for constructing a hospital building with a total area of 32437.35 sq.mts. Exhibit P1 is dated 5.7.2008 and the construction of the hospital began in 2009. The petitioner also obtained a ‘Consent to Establish’, from the 2^nd respondent as early as 01.07.2009, which is Ext.P2. According to the petitioner, they have already provided necessary measures for environmental conservation and sustainability. The petitioner also obtained registration from the 3^rd respondent under the Kerala Panchayat Raj (Registration of Private Hospitals and Private Paramedical Institutions) Rules 1997, as early as in the year, 2011. After completing the construction of the entire building, the petitioner applied for ‘Consent to Operate’ from the 2^nd respondent on 29.12.2019. However, the 2^nd respondent, instead of granting the same, required the petitioner to re-submit the application along with an Environmental Clearance from the 1^st respondent for the functioning of the hospital. This writ petition is submitted by the petitioner in such circumstances challenging the same.

3. According to the petitioner, such a stipulation is not at all necessary in view of the subsequent notification issued in this regard. According to the petitioner, initially, the relevant notification was Environmental Impact Assessment Notification , 2006 (SO 1533 (E) dated 14.9.2006, which contemplated prior environmental clearance in the case of construction projects having an area beyond 20,000 sq.mts. However, later, the requirement of prior environmental clearance in respect of the construction projects was substituted by a further notification dated 15.11.2018, wherein the minimum area for which prior environmental clearance required, was enhanced to 50,000 sq.mts. from 20,000 sq.mts. Exhibit P4(b) is the said notification. Therefore, it was pointed out that, in the light of the above, it is not necessary for the petitioner to obtain a prior environmental clearance. Besides, it was also the case of the petitioner that the petitioner is entitled to get an exemption in respect of the building used for the purpose of education, as the petitioner is running paramedical educational courses along with the hospital.

4. A statement was filed by the respondent No.1, wherein, the contentions raised by the petitioner are opposed. It is pointed out that the notification