Tata Consultancy Services vs State Of Maharashtra And Ors

The Appellant- Tata Consultancy Services (TCS) Ltd. have assailed the order dated 16th January, 2017 passed by Respondent No.1 Environment Department, State of Maharashtra, issuing directions to stop the construction work of Phase-II development of I.T Park popularly known as "Banyan Park" at plot CTS No.221 to 237 and 244 to 245, Suren Road, Gundavali, Andheri (E), Mumbai till Environment Clearance (EC) for the construction already done of Phase-I is duly obtained from the Competent Authority.

According to the Appellants, the eco-friendly industrial project activity of Information and Technology (I.T) Park required no EC for the construction in Phase-I housing such industrial park/estate raised in an area below 500ha and qualifying for exemption as per note under Column-5 of Entry No.7(c) of the EIA Notification, 2006. He further submits that the Maharashtra Pollution Control Board (MPCB) also supported this view with the issuance of letter dated 23rd January, 2006 in response to the query made regarding the proposal moved by the Appellants for grant of EC to the said construction of Phase-I of the said project for I.T. park vide copy of letter annexure A/7 to the Appeal. He points out from the contents of said letter that Respondent No.2-MPCB in unequivocal terms stated that the said IT park project did not attract the EIA Notification dated 7th July, 2004, as the total area for the project was 22Acres, which is less than 50ha, and consent from MPCB is not required as per I.T and ITES Policy, 2003 of Govt. of Maharashtra.

Learned Counsel appearing on behalf of Respondent No.1 Environment Department and Respondent No.3 SEIAA points out that the construction activity of Phase-I in the said project, which is more than 20,000sqm Built up Area, is 'B' Category activity of building and construction as per the Entry No.8(A) in the EIA Notification, 2006, and as such, exemption mentioned in Column-5, of the Entry No.7-(c), is not available to the projection in question. The Entry 7(c) is reproduced herein below for ready reference:

LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL CLEARANCE

Project or Activity

Category with threshold limit

Conditions if any

1

A

B

Mining, extraction of natural resources and power generation (for a specified production capacity)

(1)

(2)

(3)

(4)

(5)

7(c)

Industrial estates/ parks/ complexes/ areas, export processing Zones (EPZs), Special Economic Zones (SEZs), Biotech Parks, Leather Complexes.

If at least one industry in the proposed industrial estate falls under the Category A, entire industrial area shall be treated as Category A, Irrespective of the area.

Industrial estates with area greater than 500 ha. and housing at least one Category B industry.

Industrial estates housing at least one Category B industry and area <500 ha.

Industrial estates of area> 500 ha. and not housing any industry belonging to Category Aor B.

Special condition shall apply Note: industrial Estate of area below 500ha and not housing any industry of category A or B does not require clearance.

Learned Counsel appearing on behalf of the Appellant on instructions from Mr. Benny Mathews, Admin Head, Mumbai Branch present in the Court submits that in the peculiar facts and circumstances of the case, the Appellant gives up its contentions and will feel obliged if the Appellant is permitted to apply for grant of Ex-Post Facto EC for Phase-I project and MoEF considers such Application in view of the provisions in the Notification dated 14th March, 2017, and till such proposal is considered the prosecution be stayed. He submits that MoEF may also be directed to consider their plea for withdrawal of prosecution lodged against them under Section 15 of the Environment (Protection) Act, 1986 in Regular Criminal Case No.178/SW/ 2017 pending in the Court of Metropolitan Magistrate, Andheri andconsequent appropriate directions to MPCB and/or the Environment Department, State of Maharashtra as are permissible in law. He further submits that such directions for withdrawal of the prosecution are necessary, particularly, in view of the conduct of MPCB in issuing the letter dated 23.1.2006, and if the directions to withdraw from prosecution are not issued, liberty be granted to the Appellants to make submissions both on facts and law, particularly, in light of the final decision of MoEF on the EC Application and the facts and circumstances in the present case in the said Criminal Case for mitigation of penalties proposed to be imposed therein. Learned Counsel appearing on behalf of the Appellant also makes a statement that the Appellant will not start construction of Phase-II till the Application for grant of Ex-Post Facto EC to Phase-I of the project is disposed off.

Learned Counsel Mr. Rahul Garg appearing on behalf of Respondent No.4 MoEF submits that the Appellant can avail of the window provided by the Notification dated 14th March, 2017 issued by it for making an Application for grant of Ex-Post Facto EC to Phase-I of the project, and mend the matters in accordance with law.

Considering these submissions, we are of the considered opinion that we need to allow the parties to take steps for securing environmental justice as permissible in law. We, therefore, pass the following directions:

i) The impugned order/directions dated 16th January, 2017 shall remain stayed till the MoEF takes decision on the proposal moved by the Appellant for grant of of Ex-Post FactoEC to Phase-I of the project in accordance with law, subject to the Appellants filing an Application for grant of Ex-Post Facto EC for Phase-I of the project namely; I.T Park popularly known as "Banyan Park" at plot CTS No.221 to 237 and 244 to 245, Suren Road, Gundavali, Andheri (E), Mumbai expeditiously, but not later than four (4) weeks, as per the Notification dated 14th March, 2017 issued by MoEF.

ii) We direct Respondent No.4 MoEF to process such Application and disposed it of in accordance of law expeditiously.

iii) We further direct Respondent No.4 MoEF to consider the plea of Appellants for issuing necessary directions to MPCB and/or the Environment Department, State of Maharashtra to withdraw the prosecution lodged against the Appellants under Section 15 of the Environment (Protection) Act, 1986 in Regular Criminal Case No.178/SW/2017 pending in the Court of Metropolitan Magistrate, Andheri, and issue such directions as are permissible under the law.

iv) The Proceedings in Regular Criminal Case No.178/SW/2017 pending in the Court of Metropolitan Magistrate, Andheri, shall remain stayed till the time MoEF takes decision both on the Application moved by the Appellants for grant of EC as well as for issuance of directions to withdraw from prosecution.

In case, the MoEF rejects the plea of the Appellant for issuance of directions to withdraw from the prosecution, we hope and trust that the Ld. Metropolitan Magistrate, Andheri, before whom the said proceedings is pending duly considers the plea of the Appellants for mitigation of penalties proposed in law in light of final decision of MoEF as aforesaid and the letter dated 23rd January, 2006 issued by MPCB to the Appellant.

The Appeal stands disposed off in terms of above directions with no order as to costs. M.A.No.69 of 2017 no longer survives and as such stands disposed off.