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Judgment
We have heard learned Advocates for the parties.
Mr. Navroz Seervai, learned Senior Counsel points out from the impugned communication that it is only recommendation made by MCZMA and, therefore, it cannot be subject matter of challenge under Section 16(h) of the NGT Act, 2010. He argued that the project in question is not finally granted Clearance by the concerned Authority. He pointed out that the construction work has not commenced yet for want of final approval and as the appeal is premature. Mr. Subramaniam Advocate for the Respondent No.3, argues on same line. Therefore, his contentions need not be reproduced here so as to avoid repetition.
Countering above submissions, it is pointed out by learned Counsel Smt. Gayatri Singh for the Appellants that impugned order categorically shows that it is Clearance granted to the project and, therefore, the same can be challenged by filing the appeal. She invited our attention to condition No.(7) of the impugned order, which reads as follows:
"Condition No.(7): Any appeal against this CRZ Clearance shall lie with NGT, Van Vigyan Bhawan, Section-5, R.K.Puram, New Delhi-110022. " if preferred within thirty (30) days, as prescribed under Section 16 of the NGT Act,2010".
Chief bone of contention of learned Counsel for the Appellants is that due to such condition No.(7), impugned communication tantamount to order of Clearance and that the MCZMA, has issued final order without considering relevant material.
Mr. Gupte, learned Counsel for MCZMA, would submit that MCZMA has the power to approve the project when relevant material is examined and the project is found to be within relevant parameters. He pointed out that the Authority deliberated the issue of CRZ recommendations, for only those components for which IOD has been issued, has been approved after it was duly satisfied and the required conditions were laid. He further pointed out that the proposal regarding construction of 'Residential Hotel' was excluded by the MCZMA. Thus, according to Mr. Gupte, learned Counsel for MCZMA, the impugned communication is final clearance granted in favour of the Project Proponent (PP).
The question which arises for determination, as per preliminary objection raised by counsel for the Respondent No.4, is as follows:
Whether the Appeal is premature and as such liable to be dismissed, because it is untenable in view of Section 16(h) of the NGT Act, 2010?
At the outset, it would be appropriate to refer Section 16 (h) of the NGT Act,2010, which may be reproduced for ready reference as follows:
"16. Tribunal to have appellate jurisdiction.-any person aggrieved by,-
(a) xxx xxx xxx xxx xxx
(b) xxx xxx xxx xxx xxx
(c) xxx xxx xxx xxx xxx
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(e) xxx xxx xxx xxx xxx
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(h) an order made, on or after the commencement of the National Green Tribunal Act,2010, granting environmental clearance in the area in which any industries, operations or recesses or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act,1986 (20 of 1986) (i) (j)
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A plain reading of above provision, makes it clear that an Appeal would lie only against the Clearance orders, if it is so granted by the competent Authority. In order words, no appeal is maintainable against mere communication or recommendation, in respect of a project activity. Such Appeal, in our opinion, is to be treated "untenable".
The communication dated 26.7.2013, shows that subject itself is refereed as 'proposal' regarding redevelopment of MHADA layout of Aramnagar on certain plots. It appears that the communication dated 26th July, 2013, is issued by the Secretary of MCZMA. It appears that the condition No.(1), mentions that the proposed construction should be carried out strictly as per the provisions of CRZ Notification, 2011. (as amended time to time) and guidelines/clarifications given by MoEF time to time. A second condition is that this recommendation is for only those components of the proposal for which IODs has been issued. Almost all other wordings indicate that the communication is of recommendatory nature and the PP was put under obligation to seek mandatory permissions from different Authorities, prior to commencement of the work. A copy of communication was forwarded to the Chairperson of MCZMA/Environment Department, Mantralaya, Mumbai. We have perused the provisions of CRZ Notification issued on 6th January, 2011. Regulation 4, of the said Notification deals with permissible activities in CRZ area. In the present case, there is no dispute about the fact that Housing Scheme is within CRZ area. Regulation 4(b), (c) and (d) are required to be read together. They cannot be considered in isolation. They may be reproduced as follows:
Regulation No.4: Regulation of permissible activities in CRZ area: The following activities shall be regulated except those prohibited in para 3 above.
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(b) for those projects which are listed under this notification and also attract EIA notification,2006 (S.O.1533) (E), dated the 14th September, 2006), for such projects clearance under EIA notification only shall be required subject to being recommended by the concerned State or Union Territory Coastal Zone Management Authority (hereinafter referred to as the CZMA)
(c) Housing schemes in CRZ as specified in paragraph 8 of this notification.
(d) Construction involving more than 20,000sq mts built-up area in CRZ-II shall be considered in accordance with EIA Notification,2006, however, for projects less than 20,000 sq.mts built-up area shall be approved by the concerned State or Union Territory, Planning Authorities, in accordance with this Notification after obtaining recommendations from the concerned CZMA and prior recommendations of the concerned CZMA, shall be essential for considering the grant of Environmental Clearance under EIA Notification, 2006 or grant of approval by the relevant Planning Authority.
(e) xxx
(f) xxx
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From language of Regulation 4(b) it is manifest that the projects which involve more than 20,000 sq.m built-up area, "also attract EIA Notification, 2006" for clearance under the EIA Notification, subject to recommendation by the concerned State Coastal Zone Management Authority (CZMA). Obviously, in such a case, MCZMA has to recommend the project for Clearance to the State Level Authority (SEIAA). Needless to say, MCZMA is not the final authority to take decision in such a matter. Considering this legal position, we are of the opinion that condition No.(7) incorporated in the communication dated 27.7.2013, which is under challenge in this Appeal, is otiose and must be deemed as deleted, being illegal. In our opinion, MCZMA should recommend the project to SEIAA with reasons for approval or for non-approval as the case may be and SEIAA may independently examine merits of the recommendations prior to granting or refusing the Clearance by passing a 'speaking order.' All issues are kept open.
Considering the above reasons, we hold that the Appeal is premature and liable to be dismissed with observations made above and direction to delete the condition No.(7) from the impugned communication. Liberty granted to file appeal if any further communication is received from MCZMA or SEIAA which will be adverse to either party. Accordingly, the Appeal is disposed of. No costs