AI Structured Summary
Not yet generated for this judgment
Judgment
In the present Application, Applicants challenge the Environmental Clearance (EC) dated 12th April, 2013 issued by Respondent No.1 Goa State Environment Impact Assessment Authority (SEIAA) to the hotel/resort project of Respondent No.5 i.e. M/s Leading Hotels on the grounds that the EC is an outcome of fraud committed by Goa State Expert Appraisal Committee (SEAC)/SEIAA, and therefore, the EC is non-est and liable to be set aside.
The present controversy is related to development of a hotel/resort project and the said project has been resisted by the Applicants by separately challenging the environmental clearance, CRZ clearance and the forest clearance. However, in the present Application, the challenge of EC is only being adjudicated. It is also necessary to take a note that the present litigation has travelled a long way wherein the interim orders of the Tribunal were challenged on the jurisdictional ground before the Hon'ble High Court of Bombay at Goa and after the decision of the Hon'ble High Court of Bombay at Goa, the Tribunal has recorded on 21st December, 2015 that all the three matters related to this development project will be heard separately but along with all the individual M.As filed in respective Application/Appeal. Accordingly, this particular matter was heard on 4th August, 5th August and 11th August for the final adjudication.
Shorn of unessential, the Applicants have referred specific grounds to allege the fraud by SEAC/SEIAA. They could be summarized as under:
(i) The SEAC has not recommended the project to the SEIAA. Though, SEAC considered the project proposal on 4th February, 2013 and 8th March, 2013, certain technical queries were raised and SEAC recorded that the appropriate authority for grant of EC could be Ministry of Environment and Forest (MoEF).
(ii) The SEAC raised total nine queries on the project proposal which were subsequently responded to by the project proponent but the same were not considered by the SEAC.
(iii) Such response of the project proponent was not brought to the knowledge of SEAC, as such, and only Chairman and Member Secretary of SEAC have signed the recommendatory note dated 10th April, 2013 for consideration of SEIAA, without the approval of the SEAC through a properly conducted meeting.
(iv) The SEIAA considered the proposal on 12th April, 2013 and the Minutes recorded that the proposed built up area is 58,416 sq.mts whereas the EC granted on the same date refers to BUA about 3,31,854 sq.mtrs.
(v) The Applicants, therefore, allege that the proposal for the proposed hotel project was not appraised as per Environment Clearance Regulations, 2006 (EC Regulation 2006) by the SEAC and further the SEAC has not even recommended the project to the SEIAA for grant of EC. The Applicants allege that there is a conspiracy on the part of Member Secretary and Chairman SEAC to recommend such project to SEIAA through a note when they were not authorized to do so. And hence, the Applicants allege that the EC has been granted without proper scrutiny and appraisal by SEAC. It is further alleged that the SEIAA is required to normally accept the recommendation of SEAC and in case of any disagreement on the recommendations of SEAC; the proposal needs to go back to SEAC as per the provisions of EC Regulations. The Applicants further allege that though SEAC in its meeting has recorded that the MoEF may be the competent authority to grant EC, SEAAA has gone ahead to grant EC based on purportedly unauthorised note from Member Secretary, Chairman of SEAC.
There are some other technical issues which have been raised by the Applicants which are generally covered by the nine queries raised by the SEAC. The Applicants allege that these queries are critical from environmental protection and conservation point of view and the response of the project proponent is required to be evaluated and appraised by the Expert Agency i.e. SEAC in order to ascertain that the proposed activities do not have adverse environmental impact.
The Respondent No.5 has filed MA No.259/2015 raising preliminary objections to the maintainability of the present Application. Respondent No.5 submits that the Applicants had withdrawn the challenge to the EC dated 12th April, 2013 vide Pursis dated 3rd August, 2015 in Appeal No.2/2015. Although liberty was given by the Tribunal to file an Application under Section 14, this liberty was provided as per law. Respondent No.5 submits that having withdrawn the Appeal under Section 16 of the National Green Tribunal Act, 2010, now the Applicants cannot invoke the provisions of Section 14 to challenge the impugned EC dated 12th April, 2013. The Respondent No.5 submits that even though the fraud is alleged, it could have been taken as one of the grounds in the Appeal.
The Respondent No.5 further contends that the EC in question cannot be challenged under Section 14 and it should have been challenged under Section 16 as per the provisions of National Green Tribunal Act, 2010. The Respondent No.5 further raised objections related to limitation of time. It is submitted that the EC dated 12th April, 2013 was published in newspaper on 18th April, 2013 and therefore, the present application which has been filed on 9th October, 2015 is hopelessly barred by limitation of time.
Respondent No.5 alleges that the Applicants have made an attempt to circumvent the bar of limitation by raising a bogy of fraud in order to avoid the rigors of limitation. The Respondent No.5 also alleged that there are several litigations initiated intra party between the Villagers of Tiracol wherein the property disputes are raised. And therefore, the Respondent No.5 has prayed for dismissal of this Application.
Per contra, the Applicants submit that the present challenge to the EC is on the grounds of the fraud committed by SEAC and SEIAA in circumventing the due procedure as prescribed in the EC Regulations, 2006. They further submit that such a fraud has an environmental consequence as the project in question is a large scale project having significant environmental impacts and the same has not been appropriately appraised by the concerned authorities. Applicants submit that the fraud also includes representing wrong material facts or omission of facts necessary for taking decision. They contend that the fraud is evident in the present case as there are no SEAC Minutes of Meeting which are on record recommending the said project for grant of EC. SEAC in its meeting dated 8th March, 2013 has clearly recorded that Ministry of Environment and Forest (MoEF) could be a competent authority to grant EC in the present case. The Applicants submit that in view of such a revelation of the fact that SEAC has not recommended the project; the fraud is clearly established on the part of Member Secretary and Chairman of SEAC who have unilaterally and without any approval of SEAC have recommended the project to SEIAA. The Applicants claim that such a fraud unravels with time.
It is submitted by both the Applicant as well as Respondent No.5 that the proposed project of Respondent No.5 is also facing legal hurdles in terms of tenancy related issues and Hon'ble High Court of Bombay at Goa has given stay to the construction of project except two villas. And therefore, there is no material progress of the project development at the site.
We have gone through the allegations made by the Applicants and also the preliminary objections raised by Respondent No.5. Both the Applicants and Respondents have relied on several judgments to advance their arguments which are listed below;
Applicants:
(1) Ram Chandra Singh V/s. Savitri Devi & Ors. [Civil Appeal No.8216 and 8217 of 2013] decided on 09.10.2003
(2) S.P. Muthuraman Vs. UIO & Ors. [Appeal No.37 of 2015] decided on 07.07.2015
(3) Naim Sharif Hasware Vs. M/s. Das Offshore Engg Ltd & Ors. [Application No.15(THC)/2014] decided on 24.12.2014
(4) Forward Foundation Vs. State of Karnataka & Ors. [ Application No.222/2014] decided on 07.05.2015
(5) Sunil Shetye Vs. Leading Hotels Limited & Ors [M.A. No.185/2014 in Application No.97/2014] decided on 16.04.2015.
Respondent No.1
(1) Ram Chandra Singh Vs. Savitri Devi & Ors. Civil Appeal No.8216 and 8217 of 2013] decided on 09.10.2003
Respondent 5:
(1) Khatri Hotels Private Limited & Anr. Vs. Union of India & Anr. [(2011) 9 Supreme Court Cases 126]
(2) Save Mon Region Federation & Anr. Vs. Union of India & Ors. [M.A. No.104 of 2012 arising out of Appeal No.39 of 2012] decided on 14.03.2013.
(3) M/s. Medha Patkar & Ors Vs. Ministry of Environment & Forests & Ors. [Appeal No.1/2013] decided on 11.07.2013.
(4) Sudiep Shrivastava Vs. Union of India & Ors. [Appeal No.33/2013] decided on 25.09.2014.
(5) Grampanchayat Tiroda, through Deputy Sarpanch and Mr. Ajay Shivajirao Bhonsle Vs. Ministry of Environment and Forests & Ors. [Appeal No.2/2013]
(6) Aradhana Bhargav and Ors Vs. Ministry of Environment and Forests & Ors. [Application No.11/2013]
(7) Cavelossim Villagers Forum Vs. Village Panchayat of Cavelossim & Ors. [M.A. No.17/2015 in Application No.61/2014]
(8) Sunil Kumar Samanta Vs. West Bengal Pollution Control Board & Ors. [M.A. No.573/2013 in Appeal No.67/2013]
(9) Dr. (Sau.) Nandini Sushrut Babhulkar & Ors. Vs. Maharashtra Industrial Development Corporation & Ors. [ M.A. No.46/2013, M.A. No.09/2014 In Appeal No.7/2013 along with Appeal No.2/2014]
(10) Shri Dilip Namdeo Dherange & Ors. Vs. Ministry of Environment & Forests & Ors. [Appeal No.24/2012]
(11) Thervoy Gramam Munnetra Nala Sangam Vs. Union of India & Ors. [Appeal No.14/2011]
Learned Additional Advocate General Shri Lawande appearing for Government Authorities elaborately argued on provisions of EC Regulations and procedure to appraise certain projects. He submits that the Clause-3 of the EC Notification 2006 makes it mandatory for SEIAA to hold the 'meeting' for appraising the project. He further submits that Clause-4 of this Notification refers to the procedure adopted by the SEAC wherein such meeting of SEAC is not mandatory. He further submits that this project is a construction project which is covered under the Entry-8-A of the Schedule of the EC Regulations, 2006 where the general conditionsreferred in the schedule of notification are not applicable. He, therefore, submits that the observations of the SEAC related to interstate boundary as referred in the general conditions is not applicable in the present case and, therefore, SEIAA is competent authority. He further submits that the SEAC conducted the appraisal of the project and has even inspected the site on 8th March, 2013. The Project Proponent submitted the response to the queries on 9th April, 2013 which were appraised by the Member Secretary and Chairman of the SEAC and accordingly the project was recommended by the Member Secretary and Chairman to the SEIAA. He submits that once the Chairman signs the documents, the records are final and the same has been done in public interest and performance of public duty.
In order to understand the conspectus of the present controversy, it would be necessary to know the chronology of events leading to grant of the impugned EC. The Respondent No.5-Project Proponent applied to SEAC for Environmental Clearance on 24th January, 2013. The Goa-SEAC considered the proposal of Respondent No.5 at a special meeting which was also attended by GSPCB officials on 4th February, 2013 wherein five (5) queries were raised for due compliance by the Respondent No.5. Subsequently, the SEAC and GSPCB conducted site inspection of the project of Respondent No.5 on 8th March, 2013 and four additional points were raised regarding the project of Respondent No.5. Thereafter, on 14th March, 2013, the five issues raised by SEAC on 4th February, 2013 were addressed by the Project Proponent. Subsequently, on 9th April, 2013 the Project Proponent filed response to the remaining queries raised by SEAC during its site inspection on 8th March, 2013. On 10th April, 2013, a note duly signed by the Member Secretary and Chairman of SEAC (page 65 and 66 of the file) titled as "Project / site-specific observation along with summary discussion and recommendations subsequent to site-inspection of project area at Tirakhol conducted by Goa State Expert Appraisal Committee (Goa-SEAC) on 8th March 2013" was submitted to SEIAA. Thereafter, the Goa-SEIAA considered the proposal of Respondent No.5 on 12th April, 2013 and decided to grant the conditional EC to the impugned project. The EC was issued on 12th April, 2013 and the records would indicate that the Minutes of such meeting dated 12th April, 2013 are signed on 15th April, 2013.
All these chronological events would clearly indicate that the note dated 10th April, 2013 signed by Member Secretary and Chairman of SEAC has been issued without such resolution or the decision of SEAC taken in a particular meeting. Even, no records are placed before us to show that such a decision was later ratified or concurred by the SEAC. Admittedly, the meeting of the SEAC was only held on 4th February, 2013 and subsequently, there was a site inspection on 8th March, 2013, which was attended by few of its members and cannot be construed as meeting in true sense. The Applicants have strenuously argued to claim that this is a fraud committed by the Member Secretary and Chairman by which they have recommended the project without the approval or concurrence by the SEAC.
On this limited aspect, it is necessary to understand the scheme of the EC Regulation, 2006. Clause-4 and 5 of the EC Regulation, 2006 refers to the procedures to be followed while appraising the application for EC. The SEAC at state level are constituted by the Central Government in consultation with the concerned State Government as per the composition given in Appendix-VI of the Notification. A mere perusal of Appendix-VI would indicate that the SEAC comprise of subject experts with requisite expertise and experience in multi-disciplinary subjects like Environmental Quality, Sectoral Project Management, EIA process, Risk Assessment, Life Science, Forestry and Wild Life, Environmental Economics with experience in project appraisal and Public Administration or Management.
It is manifest from such mandatory composition of SEAC that the legislature has rightfully accorded prime importance to the scientific and technical evaluation and appraisal of the EC proposals to ensure the sustainable development, without significant environmental impacts. It is a well settled position that environment is a multi-disciplinary subject and therefore, the SEAC are expected to appraise the projects with the multi-disciplinary expertise available with it. The Appendix-VI also stipulates stringent criteria for such professional and expert Members to be Member of SEAC. Clause-5 of the EC Regulations, 2006 also stipulates that the SEAC shall meet at least once every month and also the SEAC shall function on the principle of collective responsibility. It is further stipulated that the Chairman shall endeavor to reach the consensus in each case and if consensus cannot be reached, the view of the majority shall prevail.
The Appendix-V also prescribe the procedure for appraisal of the project and also stipulate that the Applicant (Project Proponent ) shall be informed at least 15 days prior to the scheduled date of meeting for considering the project proposal. Further para-6 of Appendix-V stipulates that the Minutes of SEAC meeting shall be finalised within 5 working days of the meeting and displayed on the website of the concerned authority. In case the project or activity is recommended for grant of EC, then the minutes shall clearly list out the specific environmental safeguards and conditions. This particular condition is very unique which demonstrates the legislative intent to maintain full transparency in EC procedure.
It will not be out of context to note that unless the EC proposals are collectively appraised by multi-disciplinary expertise available with the SEAC, the appraisal process cannot be considered as complete. And, therefore, we do not have any hesitation to hold that all the decisions of the SEAC need to be taken in a meeting as per procedure prescribed in the rules.
Principal Bench of NGT has underlined the importance of the functioning of SEAC in Judgment dated 17th July, 2014, in OA No.116(THC) of 2013 and the relevant para is reproduced below:
The expression, 'implementation' appearing in different statutes has been discussed by us in some detail above. At this stage, we must notice that under the Statement of Objects and Reasons of the Act 1986, the primary concern was over the existing state of environment, that is the decline in environmental quality, increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems. Thus, to prevent and control these pollution related problems and to preserve wholesome environment for the community at large, the provisions of the Act of 1986 Act were enacted. The Act of 1986, provided both for procedure as well as regulatory regime for protection of environment thereto.
In exercise of the powers conferred under Section 6 and 25 of the Act of 1986, the Central Government had framed the Rules of 1986. Under Rule 5 of the said Rules, the Central Government is empowered to pass certain prohibitory or restricted directions in relation to the fields stated under that Rule. In terms of Rule 5(3)(d), it is empowered to issue prohibition or restriction on location of such industry and the manner in which the process is to be carried on. The grant or refusal of Environmental Clearance/Authorization is, thus, the most important aspect of environmental jurisprudence in as much as it is only after grant and refusal of Environmental Clearance/Authorization that any project or activity can be carried on in that area. As already noticed, this process is to be completed by an expert body i.e. the EAC/SEAC. Therefore, to implement effectively the provisions of environmental law, EAC/SEAC performs the most important and significant functions. If the members of this expert body are non-environmentalists and do not fall within the eligibility criteria of Appendix VI, then besides violation or infringement of such provisions, its direct impact would be on the environment. If people who are not strictly qualified and eligible and who do not professionally belong to this field, are selected as members of EAC/SEAC, the obvious result would be improper application of mind to the project reports and the application moved by the Project Proponent for grant of Environmental Clearance/Authorization. The EAC/SEAC has to perform functions of a very scientific and technical nature and has to analyse comprehensive terms of reference and environmental impact assessment report in respect of the project activity and then submit its report and recommendations to the Government for grant/consideration of the appropriate authority. Persons who are not eligible or are not having requisite expertise and experience in relation to the various fields of environment and the process involved therein, would cause serious prejudice to all the stake-holders and more particularly to the environment and ecology of the country. It is an accepted social norm that prevention is better than cure. If the projects are cleared by class of the persons afore-stated then such projects when made operational, may have serious adverse impacts on the environment and cause environmental hazards. It would be better to prevent participation of such persons in the process of appreciation and grant of consent/clearance/authorization rather than to find remedies to the problems of pollution resulting from improper exercise of powers by such persons. Appendix VI to the Notification of 2006 issued in furtherance to the powers vested by the Act and is subordinate/delegated legislation and thus, would be an integral part of the Act. Therefore, compliance and proper implementation of the provisions falling under and arising from the specified Acts in Schedule I would be matters raising substantial questions of environment, hence covered under Section 14 of the NGT Act.
(emphasis supplied)
Admittedly, such decision of recommending the project for EC has not been taken by the SEAC in a meeting held as per the provisions of the Rules. Neither, there is any record to show that the MS and Chairman were given such an authority to send such recommendations. In any case whether such authority can be given could be a separate legal issue which we are not dealing in the present case, but it suffice to note that there were 9 queries raised by SEAC, which were subsequently responded by the Project proponent and the same have not been considered or evaluated by SEAC.
It will be, therefore, manifest that the prescribed procedure of appraisal of the project proposal as enumerated in EC Regulations, 2006 has not been carried out by SEAC and further based on the note issued by the Member Secretary and Chairman, the SEIAA has taken a decision to grant the EC. Thus, in view of failure to observe the procedure enumerated inthe EC Regulations, 2006 and also to observe the basic principles of natural justice, the decision of Member Secretary and Chairman of SEAC to recommend the project for grant of EC vide note dated 10th April, 2013 is 'non-est' in the eye of law for the reasons discussed so far.
With this finding, the questions as to whether the Application is barred by limitation of time or whether the EC can be challenged in Application under section 14 of NGT Act, 2010, will have its own answer, in negative. Further, admittedly the note recommending the EC dated 10 th April, 2013 was also not posted on the website.
Another question which the Tribunal has to deal with is whether the purported actions of the Member Secretary and Chairman to issue such a recommendatory note without a concurring resolution of the SEAC meeting can amount to fraud. In our considered opinion, this may not be strictly falling under the category of fraud but is on the wafer thin edge of fraud and irregularity, but more inclined towards the irregularity. The project in question is not a prohibited project but a permissible regulated activity. The project activity can be carried out with necessary environmental clearance and the CRZ clearance. In such cases, the Tribunal will have to look into the balance of convenience and generally in the environmental matters the balance of convenience is always towards "environment" which is a party in absentia.
It is submitted before the Tribunal that the project is also facing legal hurdles as far as the tenancy issues are concerned and there is an operating stay against the project activities given by Hon'ble High Court of Bombay at Goa. The learned Counsel appearing for Respondent No.5-Project Proponent submitted that no development activities are presently going on at site. In view of this fact and also in the interest of justice, we issue following directions:
The EC dated 12th April, 2013 is kept in abeyance for next 4 months.
The Goa-SEAC shall appraise the project by considering all the material on record within next four (04) weeks and send its recommendations to SEIAA who shall further appraise the project for a decision on grant of EC within four (04) weeks from the date of receipt of recommendations of SEAC. Both SEAC and SEIAA shall appraise project without any prejudice, without getting influenced by any of the observations in this Judgment.
Chief Secretary, State of Goa shall take note of the conduct of Member Secretary and Chairman of SEAC and take suitable action as required.
The Application No.135/2015 is therefore disposed of accordingly along with all connected Miscellaneous Applications with no orders as to costs.