The National Green Tribunal (NGT) Principal Bench on Wednesday (09th September) directed the Jharkhand Government to stop all on-going construction work (not having Environmental Clearance) and to take action against authorities in Jharkhand for allowing the construction to take place without prior Environmental Clearance (EC).
This Order has been given in connection with the construction of several major structures, including the Jharkhand High Court Building and Jharkhand Vidhan Sabha.
The Principal Bench of the Tribunal, comprising Justice S. P. Wangdi and expert member Nagin Nanda, ordered the ban after it noted that the status report filed by Jharkhand revealed that 35 major structures constructed in the State were without prior EC.
The Background of the matter
The applicant R. K. Singh, a renowned environmentalist, filed this case alleging non-implementation of Environmental Impact Assessment Notification, 2006 in the State of Jharkhand in respect of building constructions.
It was stated that the State of Jharkhand has undertaken various major constructions of buildings particularly in the cities of Ranchi, Jamshedpur, Bokaro and Deogarh without obtaining mandatory prior environmental clearance under the EIA Notification, 2006 even when it is mandatory in respect of structures having more than 20,000 Sq. Ms. which is categorized as Category 8(a) in the schedule to the notification.
Specific mention was made of the Jharkhand High Court Building, Jharkhand Vidhan Sabha, P & M Hi-Tech City Centre Mall, Jamshedpur, Vijaya Garden Homes and Aastha Twin City.
The matter was taken up on 02.09.2019 when the notice was issued upon the respondents and, having regard to the nature of the case, a committee was constituted comprising of the following:
(i). a representative of the Regional Office of the MoEF & CC at Ranchi, and
(ii) a representative of the SEIAA, Jharkhand.
The committee was directed to verify the merits of the statements contained in the Original Application and to submit a report and further, if the factual statements made in the application were found to be correct, appropriate action was directed to be taken in accordance with law against those who were in violation.
On 23.09.2019, an affidavit was filed on behalf of the Respondent no. 3, SEIAA Jharkhand which clearly revealed that the Assembly Building (Vidhan Sabha, Jharkhand) had been constructed without environmental clearance and a proposal had been submitted on 11.09.2017 for environmental clearance to the MoEF & CC in the violation category.
By order dated 23.09.2019, the NGT also indicated that since the cases fell under the purview of the violation notification dated 14.03.2017, action to be taken against the violators and payment of environmental compensation assessed by the CPCB for environmental damage caused due to constructions.
The State Government on its part was directed to recover the environmental compensations assessed by the CPCB as conveyed vide their affidavit filed on 12.03.2020.
Show was also directed to be filed by the State Government to showcase as to why compensation assessed by the CPCB be not directed to be paid.
It is to be noted that the violation notification dated 14.03.2017 had ceased to have an effect and as admitted by the MoEF that at present no mechanism is in existence to deal with the situation as prevailing in the present case except that a draft EIA Notification, 2020 has been published under paragraph 22 in which procedure has been laid down to deal with the situation. The notification is yet to be published leaving a vacuum in the procedure to deal with such matters.
It may be noted that the CPCB had earlier told the NGT that the State government is liable to pay environmental compensation of varying sums for the proposed Assembly Building (Jharkhand Vidhan Sabha) and New Ranchi High Court Building & Residential Complex.
In the above circumstance, the Tribunal was faced with the serious dilemma as regards the course of action to be taken.
The learned Counsel for the Applicant suggested that Environmental Compensation ought to be recovered from those violating the EIA Notification and to direct institution of prosecution under section 19 of the Environment (Protection) Act, 1986 against those responsible for the violation.
It was further submitted that in the meanwhile the on-going constructions of structures being undertaken without EC be directed to be stopped until it is obtained by the project proponents.
The Tribunal considered the various affidavits filed by the parties, considered the oral submissions of the learned Counsel for the parties and was of the view that it would be necessary to take action to remedy the situation keeping in view that principle of sustainable development and the precautionary principle.
The Tribunal, therefore, directed as follows:-
1- The State Government through the Urban Development Department shall ensure that Environment Impact Assessment is undertaken in respect of all the structures which have been raised in the municipal areas expeditiously in accordance with the procedure laid down in the EIA Notification 2006. Accordingly, the Environmental Management Plan be prepared and mitigation measures proposed therein be implemented so as to address the environmental issues arising on account of such constructions without EC. Similar action shall be taken in respect of the structures falling within notified Nagarpalika areas and Gram Panchayats, if there be any.
2- Environmental Compensation shall be assessed in respect of all the structures which have been raised without EC and shall be recovered from the appropriate authorities/persons/builders/project proponent (as the case maybe) within a period of three months from hence. Environmental Compensation in respect of those which have already been assessed shall also be recovered within the said period.
3- All ongoing constructions undertaken without obtaining prior EC shall be stopped forthwith until the environmental clearance is obtained.
4- Action shall be initiated under section 19 of the Environment (Protection) Act, 1986 by the State Pollution Control Board forthwith against those who are responsible for the violations.
5- Since the violations were being committed under the gaze of the concerned authorities, we direct initiation of disciplinary proceedings against the concerned Officers, the Municipal Commissioners and the State Pollution Control Board at the earliest.
With the above directions the Application stood disposed of. However the State Government of Jharkhand and the State Pollution Control Board were directed to file their reports of the action taken in terms of the above directions within 6 (six) months hence.
It may be noted that R. K Singh (the applicant) had reportedly said that, "For assembly building, an amount in the tune of Rs 49.34 crore was assessed by CPCB in the past till the state government sought post-factor approval from State Environmental Impact Assessment Authority (SEIA). However, in connection to the high court building, somewhere between Rs 76-81 crore was assessed by CPCB in the past. Since the EC has still not been received, the number of days pass will lead to a hike in compensation."
Case Title: R. K. Singh v. Union of India & Ors.
Case No.: Original Application No. 45/2019/EZ
Quorum: Justice S. P. Wangdi and expert member Nagin Nanda
Appearance: Advocate Sourabh Sharma (For the Applicant); Advocate Gora Chand Roy Choudhury (for Respondent no. 1); Advocate Aishwarya Rajyashree (for Respondent nos. 2, 4 and 5); Advocate Ashok Prasad (for Respondent no 3); Advocate Surendra Kumar (for Respondent no. 6); Advocate Sibojyoti Chakraborti (for CPCB).
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