(Per
: HONOURABLE MR. JUSTICE J.B.PARDIWALA)
By
way of this writ-petition under Article 226 of the Constitution, in
the nature of a public interest litigation, the petitioner, a
resident of Baroda, claiming to be a public spirited citizen of India
and an activist, has prayed for the following reliefs:-
"(A) Be
pleased to issue an appropriate writ, order or direction, directing
Ministry of Environment and Forests, respondent no.1 herein to revoke
Environmental Clearance accorded to M/s. Electrotherm (India) Ltd.,
respondent no.3 herein, for expansion of its steel plant at Survey
No. 325, 326, 339, 344 and 350 / 1 / 2 / Paiki, Milestone No. 310,
National Highway No.8-A, Village : Samakhiyali, Taluka : Bhachau,
District : Kutch, with immediate effect, till (i) environmental
norms, (ii) EIA Notification 1994/2006 and (iii) directions issued by
this Hon'ble Court in its judgment order dated 09.12.2004 in Special
Civil Application Nos. 14460/2004, 14813/2004 and 14819/2004 are
strictly complied with by the said respondent no.3 ;
(B) Be
pleased to issue an appropriate writ, order or direction, directing
Gujarat Pollution Control Board, respondent no.2 herein to revoke NOC
and Consolidated Consent and Authorization and/or any other consent /
permission granted to M/s. Electrotherm (India) Ltd., respondent no.3
herein, for expansion of its steel plant at Survey No. 325, 326, 339,
344 and 350 / 1 / 2 / Paiki, Milestone No. 310, National Highway
No.8-A, Village : Samakhiyali, Taluka : Bhachau, District : Kutch,
with immediate effect till (i) environmental norms, (ii) EIA
Notification 1994/2006 and (iii) directions issued by this Hon'ble
Court in its judgment order dated 09.12.2004 in Special Civil
Application Nos. 14460/2004, 14813/2004 and 14819/2004 are strictly
complied with by the respondent no.3;
(C) Be
pleased to issue an appropriate writ, order or direction, restraining
M/s. Electrotherm (India) Ltd. from continuing in any manner its
industrial operations and/or taking production, either commercial or
otherwise from its plant at Village : Samakhiyali with immediate
effect till (i) environmental norms, (ii) EIA Notification 1994/2006
and (iii) directions issued by this Hon'ble Court in its judgment
order dated 09.12.2004 in Special Civil Application Nos. 14460/2004,
14813/2004 and 14819/2004 are strictly complied with by the
respondent no.3;
(D) Pending
admission hearing and final disposal of the present petition, be
pleased to direct respondent no.1 to forthwith suspend operation of
environmental clearance granted to M/s. Electrotherm (India) Ltd.,
respondent no.3 herein;
(E) Pending
admission hearing and final disposal of the present petition, be
pleased to direct Gujarat Pollution Control Board, respondent no.2
herein to forthwith suspend NOC, Consolidated Consent and
Authorization and /or any other consent / permission granted to M/s.
Electrotherm (India) Ltd., respondent no.3 herein;
(F) Pending
admission hearing and final disposal of the present petition, be
pleased to restrain M/s. Electrotherm (India) Ltd. from continuing in
any manner its industrial operations and/or taking production, either
commercial or otherwise from its plant at Village : Samakhiyali with
immediate effect;
(G) Any
other and further relief as may be deemed fit, just and proper may be
granted in the interest of justice."
2. The
facts relevant for the purpose of deciding this petition may be
summarized as under:-
2.1 Respondent
No.3 Messrs Electrotherm (India) Limited has its steel plant at
village Samakhiyali, manufacturing various products. Respondent No.3
was desirous of expanding its steel plant at village Samakhiyali.
According to the petitioner, before expansion, respondent No.3 was
engaged in production of Sponge Iron, Ductile Iron Pipes, Pig Iron
in Blast Furnace, Steel Rolling Mill, M.S. Billets / Bars, Stainless
Steel Billets, Alloy Nickel and having Induction Furnaces. According
to the petitioner, the industrial activities in which the respondent
no.3 indulges pose serious threat to public health and environment as
the same create strong magnetic field, generates greater amount of
heat, emits particulates of hydrocarbons and carbon monoxide. In
case where magnesium is added to molten metal to produce ductile
iron, a strong reaction ensues, releasing magnesium oxides and
metallic fumes. Furnace emissions also include particulate matter in
the form of dusts, metallics and metal oxide furnaces and organic
vapours. The process also results into emission of noxious, gaseous
substance arising from liquid metal, magnesium treatment, zinc
treatment, etc. The plant also requires huge volume of water for
cooling purposes and thus, according to the petitioner, the
industrial activities in which the respondent no. 3 is engaged pose
serious threat to environment due to emission of hazardous
environment pollutants.
2.2 As
per the data available with the petitioner, before the application
for expansion of the steel plant was preferred, the products
manufactured by respondent No.3 with the production capacity is as
under:-
S.N. Products
before Expansion Production Capacity before Expansion
---------------------------------------------------------------------------------------
the expansion of the steel plant at Milestone No. 310, N.H. No. 8A,
Village : Samakhiyali, Taluka Bhachu, District : Kutch the estimated
production capacity is as under:-
S.N.
Products
after Expansion
Production
Capacity Proposed for Expansion
Sponge
Iron
18000
MTPM
Pig
Iron (Blast Furnace)
18600
MTPM
Power
Plant (WHRB)
MW
Sinter
Plant
32400
MTPM
TMT
Plant
10500
MTPM
D.I.
Pipe
12000
MTPM
MS
Billets / Bars (Arc/Induction Furnace)
30000
MTPM
Thus,
according to the petitioner, after expansion the production capacity
of respondent no.3 increased, which has again been set-up in a
tabular form, which is as under:-
S.N
Products
Production
Capacity (MTPM)
Before
Expansion
After
Expansion
Total
Sponge
Iron
6,000
18,000
24,000
D.I.
Pipes
4,000
12,000
16,000
Captive
Power
WHRB
FBC
MW
MW
MW
MW 45 MW
MW 21 MW
24MW
Pig
Iron (Blast Furnace)
4,500
18,600
23,100
Sinter
Plant
--
32,400
32,400
Steel
Rolling Mill
5,833
10,500
16,333
MS
Billets / Bars
5,833
30,000
35,833
Stainless
Steel Billets
25,000
--
25,000
Alloy
Nickel
--
Induction
Furnaces
Sets / Month
--
17 sets
Electric
Cycle and Vehicle
Sets/ Month
--
83 sets
2.3 According
to the petitioner, expansion of a unit was permissible in law only
after obtaining requisite environmental clearance from respondent
No.1 as per Environment Impact Assessment Notification. The EIA
Notification of 1994 as it was applicable before 14.09.2006, inter
alia, stipulated that in case of expansion or modernization of any
activity, if pollution load exceeded the existing one or the new
project was listed in Schedule I to the said Notification, such
activity shall not be undertaken unless the Environmental Clearance
has been accorded by the Central Government. Relevant part of said
Notification is set out hereunder :-
"1. xxx xxx xxx xxx
Now,
therefore, in exercise of the powers conferred by sub-section (1) and
clause (v) of sub-section (2) of the Environment (Protection) Act,
1986 (29 of 1986) read with clause (d) of sub-rule (3) of rule 5 of
the Environment (Protection) Rules, 1986, the Central Government
hereby directs that on and from the date of publication of this
notification in the Official Gazette, expansion or modernization of
any activity (if pollution load is to exceed the existing one, or new
project listed in Schedule I to this notification, shall not be
undertaken in any part of India unless it has been accorded
environmental clearance by the Central Government in accordance with
the procedure hereinafter specified in this notification.
2. Requirements
and procedure for seeking environmental clearance of projects :
I
(a) xxx xxx xxx xxx
II. xxx xxx xxx xxx
III. xxx xxx xxx xxx
IIIA. No
construction work, preliminary or otherwise, relating to the setting
up of the project may be undertaken till the environmental and site
clearance is obtained.
3. Nothing
contained in this Notification shall apply to :
(a) xxx
(b) any
item falling under entry Nos. 1, 2, 3, 4 ,5, 9, 10, 13, 16, 17, 19,
*21*, 25 and 27 of Schedule-I if the investment is less than Rs.50
crores."
2.4 According
to the petitioner, from a perusal of the above referred Notification
it is clear that no new unit could be established if the same was
listed in Schedule I to the said Notification or in case of expansion
the pollution load exceeded that of the existing limit, unless
environmental clearance was accorded by respondent No.1. Thus, until
the environmental clearance is granted by respondent No.1, neither
respondent No.2 Gujarat Pollution Control Board could issue NOC or
"Consent to Establish", nor can an industrial unit commence
its construction for proposed industrial activities, or even
undertake commercial production.
2.5 According
to the petitioner, manufacturing or production activity by an
industrial unit generates environmental pollutants in air, water or
land. In order to keep generation of environmental pollutants under
check and to ensure safety of people and environment, restrictions
have been placed on industrial units which generate hazardous waste
affecting health and environment. In that view of the matter various
enactments have been made viz. Environment (Protection) Act, 1986,
Water (Prevention & Control of Pollution) Act 1974, Air
(Prevention & Control of Pollution) Act 1981 and Hazardous Wastes
(Management and Handling) Rules, 1989, etc. Section 25 of the Water
(Prevention & Control of Pollution) Act, 1974 pertaining to
restrictions on new outlets and new discharge of sewage or trade
effluent provides that no person shall, without previous consent of
State Pollution Control Board, establish any industry, operation or
process or any treatment or disposal or an extension or addition
thereto, which is likely to discharge sewage or trade effluent into a
stream or well or sewer or on land or bring into use any new or
altered outlets for the discharge of sewage or begin to make new
discharge of sewage. Section 21 of the Air (Prevention &
Control of Pollution) Act, 1981 imposes restrictions on use of
certain industrial plants by, inter alia, providing that no person
shall, without previous consent of State Pollution Control Board,
establish or operate any industrial plant in an air pollution control
area. Section 22 of the Air (Prevention & Control of Pollution)
Act, 1981 further provides that no person operating any industrial
plant shall discharge or cause or permit to be discharged the
emission of any air pollutant in excess of standard laid down by the
State Pollution Control Board under Clause (g) of sub-section (1) of
Section 17. Under Hazardous Wastes (Management and Handling) Rules,
1989 an industrial unit generating hazardous waste shall be
responsible for proper collection, reception, treatment, storage and
disposal of waste listed in the Schedules to the said Rules.
2.6 It
is the case of the petitioner that respondent no.3, has been
committing serious acts of violation of environmental laws much
before the expansion activity was undertaken. In addition thereto,
new line of products such as Sponge Iron and Ductile Iron Pipes was
manufactured without necessary Clearance/ Consent in that behalf.
Induction Furnaces have been installed for manufacturing Ductile Iron
Pipe, without prior Environmental Clearance by respondent no.1. This
apart, while manufacturing other products the consented limit for
manufacturing has also been grossly violated. It is stated in the
petition that the Sinter Plant has been constructed by respondent
No.3 without permission and the same is in operation without
effective air pollution control system. Though Environmental
Clearance was not granted by respondent no.1, it is alleged that
respondent no.3 carried on its industrial activities and took
commercial production from its plant committing flagrant violation of
environmental laws, which can be verified from Site Visit Reports
prepared by Regional Office of respondent no.1. It is stated that
despite the above, respondent no.2 granted NOC in respect of certain
products, for which there was no environmental clearance accorded by
respondent no.1. It is also the case of the petitioner that in
respect of the expansion of the Steel Plant, site visit was conducted
by the Regional Office at Bhopal of respondent no.1 as well as
respondent no.2. A Site Visit Report was prepared by the officers
from the Regional Office at Bhopal of respondent no.1 of their visit
on 14.09.2009 and 15.09.2009. According to the petitioner, Site
Visit Report prepared by respondent no.1 brings out certain glaring
facts which not only dis-entitled respondent no.3 from grant of
Environmental Clearance in respect of expansion of its plant by
respondent no.1 or NOC / CCA by the respondent no.2 but also called
for immediate closure of industrial activities of respondent no.3.
It is pointed out in the petition that Site Visit Report of
respondent no.1 had revealed following illegalities and violation of
environmental laws at the hands of respondent no.3.
CC
& A does not show permission for manufacturing of Sponge Iron.
NOC
for establishing Sponge Iron unit with capacity of 6000 MTPM and
D.I. Pipes with 4000 MTPM was granted by the Gujarat Pollution
Control Board on 13.09.2006.
PA
i.e. respondent no.3, has not submitted valid copy of consent for
Sponge Iron and D.I. units.
(iv) Sponge
Iron I (3000 TPM) was commissioned in 2005. D.I. Pipe manufacturing
unit and Sponge Iron II (3000 MTPM) was also commissioned in 2006 and
October, 2008 respectively at the cost of Rs.30.49 crores.
(v) Two
induction furnaces of 20 tones/heat capacity and four crucibles of 20
tones/heat were installed under 2005 which operated 7-8 heats per day
as submitted.
(vi) As
per EIA Notification, 1994 installation of induction furnaces and
D.I. Pipes needs Environmental Clearance which were not obtained.
(vii) The
installation of induction furnace is covered under Schedule-I (Item
No.28) i.e. foundry (individual).
(viii) In
addition, D.I. and Sponge Iron units were found in operation without
valid consent.
(ix) Old
Sinter Plant was also in operation without effective air pollution
control system.
(x) GPCB
has rejected CC & A application vide order dated 31.01.2009. The
industry has reapplied for the CC&A, which was forwarded to HQ
along with their report dated 28-7-2009. During visit, it is observed
that they have installed DI Pipe manufacturing plant, having three
numbers of Continuous Casting Machines (CCM). The first & second
CCM were commissioned in October, 2006 as submitted whereas the third
CCM has been commissioned recently in May, 2009 (Photo-3 & 4).
Although PA claimed that the combined capacity of all the three CCM
is 4000 MT/day but, production date of DI pipe reveals that the
industry has exceeded consented limit during the months January, 09,
February, 09, March, 09, April, 09, May, 09 and July, 09.
(xi) Although
NOC of GPCB dated 13.9.06 indicates manufacturing of DI pipes to the
tune of 4000 MTPM but does not indicate diameter size of pipes. It
was observed that pipe of various sizes are being manufactured.
(xii) Later,
the industry has obtained environmental clearance dated 20/02/2008
for manufacturing of 150 MT/day Pig Iron. The industry has been
granted NOC (CTE) for the same by the Board vide order dated
30/04/2008.
(xiii) During
visit, it has been observed that construction of the BF was going on
and about 90% of the construction work is completed along with Sinter
Plant (Photo-5). It is evident from the records that Sinter Plant
which is in construction was not covered in earlier granted EC. PA
submitted that they have applied for EC for third Blast Furnace
having capacity 18600 MT/Month.
(xiv) Compliance
report of EC dated 20/02/2008 appears to be unsatisfactory and
detailed report is being sent separately.
2.7 It
is further the case of the petitioner that respondent No.3 has
committed various violations of environmental laws and carried on its
industrial activities without mandatory clearance and consent from
the respondent authorities. According to the petitioner, not only
did the respondent No.3 continued its industrial activities in an
illegal manner violating environmental laws, but also sought
expansion of a steel plant, which would further worsen the situation.
2.8 According
to the petitioner, the following breaches of environmental laws were
noticed in the site visit report of the respondent authorities.
(i) Sponge
Iron :
Respondent
no.3 commissioned, in the year 2005 Sponge Iron Plant I with
production capacity of 3000 tons per month. Subsequently, Sponge Iron
Plant-II was commissioned in October, 2008 with production capacity
of 3000 tons per month, although respondent no.3 did not have valid
consent for Sponge Iron and the Consolidated Consent and
Authorization dated 11.11.2005 of respondent no.2 did not include
permission for manufacturing of Sponge Iron. Despite the above
position, respondent no.3 has been manufacturing Sponge Iron since
2005.
(ii) Induction
Furnaces :
Respondent
no.3 manufactures 17 sets of Induction Furnaces per month, as per the
Site Visit Report of respondent no.1. Induction Furnaces have also
been installed for production of Ductile Iron Pipe by the respondent
no.3. Installation of Induction Furnaces needs prior Environmental
Clearance, which was not obtained by the respondent no.3. Induction
Furnace is a foundry which is covered under Schedule-I, Entry No.28
of EIA Notification, 1994.
(iii) Ductile
Iron Pipe :
Respondent
no.3 commissioned manufacturing unit for Ductile Iron Pipes in 2006
with production capacity of 4000 MTPM. Ductile Iron Pipes are
manufactured by use of induction furnaces which involve foundry work.
Therefore, Ductile Iron Pipes are necessarily in the nature of
foundry operations, which fell under Entry No.28 of Schedule-I to the
EIA Notification, 1994. Therefore, before commencing manufacture of
Ductile Iron Pipes, respondent no.3 was bound to obtain environmental
clearance from respondent no.1. However, environmental clearance was
not obtained from respondent no.1 and Ductile Iron Pipes are being
manufactured. Further, Ductile Iron Pipes were manufactured without
valid consent. As also observed in para 41 of the judgment dated
09.12.2004 of this Hon'ble Court in Special Civil Application Nos.
14460/2004, 14813/2004 and 14819/2004, manufacture of ductile iron
spun pipe and ductile iron cast pipe by use of induction furnace
involves foundry work. Vide the said judgment and order a mandatory
direction was issued on respondent no.1 to seek necessary
clarification from the Expert Committee, with a further direction to
the respondent no.2-Gujarat Pollution Control Board not to grant
consent to operate for Ductile Iron Pipe fittings and Ductile Iron
Casting without prior environmental clearance. Thus, respondent no.3
even exceeded the consented limit for the production of ductile iron
pipes for the months of January, February, March, April, May and
July, 2009. This apart, respondent no.3 set up new casting and
finishing line for production of Ductile Iron Pipes with the larger
diameters i.e. above 400 mm. However, the NOC granted by respondent
no.2 though did not indicate diameter size of pipes, pipes of various
sizes i.e. different diameters are being manufactured by respondent
no.3.
(iv) Sinter
Plant :
Respondent
no.3 constructed Sinter Plant though there was no permission for the
construction of the same. The said old sinter plant is in operation
without effective air pollution control system. Report of Site Visit
conducted on 14.09.2009 and 15.09.2009 by respondent no.1 shows that
Sinter Plant was not covered in the environmental clearance earlier
granted on 20.02.2008 by respondent no.1. The said environmental
clearance dated 20.02.2008 was granted for manufacturing 150 MT/day
Pig Iron which apparently did not include Sinter Plant.
(v) Consolidated
Consent and Authorization :
Application
made by respondent no.3 for Consolidated Consent and Authorization
was rejected by the respondent no.2 vide order dated 31.01.2009.
Respondent no.3 reapplied for Consolidated Consent and Authorization
vide application dated 08.05.2009 and the Consolidated Consent and
Authorization was awaited from respondent no.2. However, during the
said period, production of Ductile Iron Pipes with new casting
machine and finishing lines was continued, as without the same
production of pipes with 400 mm diameter would not have been
possible.
Commercial
Production :
Respondent no.3 was granted NOC dated 13.09.2006 by respondent no.2
for establishing Sponge Iron Unit with production capacity of 6000
MTPM and Ductile Iron Pipes with production capacity of 4000 MTPM,
for which no Environmental Clearance was granted by respondent no.1.
However, the commercial production of Ductile Iron Pipes was
commenced on and from 23.12.2005 i.e. much before 13.09.2006.
2.9 It
is the case of the petitioner that thereby respondent No.3 committed
flagrant violation of various environmental laws which warranted not
only decline of any further clearance or consent but also called for
immediate closure of all the industrial activities of respondent no.3
as an urgent remedial measure. According to the petitioner, the
factum of serious breach of environmental laws and utter negation to
comply with earlier granted clearance / consent gets fortified by the
above referred Site Visit Reports of the respondent-authorities. It
is further the case of the petitioner that as authorities are
enjoined with duty to protect health and environment, respondent nos.
1 and 2 ought to have insisted for closure of the industrial
activities undertaken by respondent no.3 as an immediate measure to
prevent detriment to health and environment, till the respondent
no.3-industry strictly complied with the environmental norms, more
particularly when they were satisfied that severe breaches and
violation of environmental laws were committed by respondent no.3.
2.10 According
to the petitioner, respondent no.3-Industry indulged into serious
violation of environmental norms and even as on date generates
environmental pollutants harming public health and environment. The
illegalities being committed by the respondent no.3 are recorded in
the above referred site visit reports of the respondent authorities.
It is stated that as per the knowledge of the petitioner no further
site visits have been conducted after the above referred site visits
on 14.09.2009 and
15.09.2009
by the respondent authorities.
2.11
According to him respondent authorities have not conducted any
other site visits after earlier site visits on 14.09.2009 and
15.09.2009 and therefore, without such further site visits it could
not be ascertained whether respondent no.3-industry strictly complies
with the environmental norms or continue violation or breach of the
said norms and whether it carries industrial activities in accordance
with EIA Notification and Environmental Norms. It is the case of the
petitioner that without conducting fresh site visit by taking a
complete somersault from its earlier definite findings regarding
serious breaches and violation of environmental laws by respondent
no.3, respondent no.1 has recommended the case of respondent no.3
for grant of Environmental Clearance.
3. It
is in this background that the petitioner has approached this Court
by way of the present petition bringing to the notice of this Court
the illegal grant of environmental clearance by respondent No.1 and
Consent/NOC/CCA by respondent No.2 despite flagrant violation of
environmental laws by respondent no.3.
4. Notice
was issued to the respondents and in response to the notice,
respondents have appeared and have opposed this petition by filing
affidavit-in-reply.
5. Stand
of respondent No.1 as taken in the affidavit-in-reply:
5.1 According
to respondent No.1 - Ministry of Environment and Forests, Government
of India, respondent No.3 had applied for No objection Certificate
to the Gujarat Pollution Control Board for production of sponge iron
and duct iron pipes which was granted by respondent No.2 Board on
13.9.2006. The said NOC was granted by respondent No.2 Board on the
ground that respondent No.3 shall not carry on any activity in
contravention of EIA Notification of 1994. It is stated that
pursuant to the grant of NOC, respondent No.3 applied for
consolidated consent for operating its SIP and DIP units on
18.9.2006, and the same was granted on 7.12.2009. Environmental
clearance was sought for in the month of November, 2007 and after due
scrutiny and following due procedure including public hearing which
was conducted on 12.6.2007, the said environmental clearance was
granted on 28.2.2008 for production of sponge iron, pig iron by
products slag and coal char and captive power plant that is WHRB
based CPP (30MW).
5.2 It
is further stated that respondent No.3 submitted proposal for
expansion of production capacity for environmental clearance along
with all the requisite documents. The proposal along with all
necessary documents was placed on 17.8.2009 before the Expert
Appraisal Committee (Industry) constituted by the Ministry of
Environment & Forests under the EIA Notification, 2006. The
Committee recommended the project for environmental clearance and
sought certain clarification for internal examination by the Ministry
of Environment and Forests before granting environmental clearance.
5.3. It
is further stated in the affidavit that after receiving all the
clarifications/explanation from the project, environmental clearance
was accorded to respondent No.3 on 27.1.2010, subject to stipulation
of environmental safeguards for compliance.
5.4 With
regard to the maintainability of the petition, the stand of
respondent No.1 is that since the petitioner has sought prayer for
revoking of environmental clearance which was accorded to respondent
No.3 after appropriate scrutiny and after due consideration to all
the relevant facts of the case, an alternative and efficacious remedy
by way of an appeal before the National Environment Appellate
Authority constituted under Section 11 of the NEAA Act, 1997 is
available to the petitioner. It is stated that any person aggrieved
by an order granting environmental clearance in the area in which the
industries/operations or process/class of industries, operations and
process shall not be carried out or shall be carried out subject to
certain safeguards, shall have to prefer an appeal to the authority
within 30 days from the date of such order. The order granting the
environmental clearance was passed on 27.1.2010, whereas the petition
was filed on 10.5.2010.
5.5 According
to respondent No.1, due care was taken while scrutinizing the
environmental clearance application of respondent No.3 and site was
visited by the Ministry's Regional Office at Bhopal on 13.9.2009, and
during the said inspection, except certain minor compliance issues,
it was found that all the required permissions were already obtained
by respondent company. Relevant paragraphs of the report are
reproduced below:-
(i) Proper
"NOC" as well as environmental clearance has been accorded
by the GPCB and MoEF for the Blast Furnace vide letters dated
23.2.2005 and 20.2.2008;
(ii) "NOC"
is also obtained from GPCB for sponge iron and continuous casting DI
pipes (4000 MTPM) on 13.9.2006 but quantity of DI Pipes has exceeded
in Jan-May, 2009 and July 2009;
(iii) Regarding
enhancing of DI pipes, it is clarified that although production of DI
pipes has exceeded on monthly basis during trial run but has not
exceeded yearly production of 48000 TPA.
6. Stand
of respondent No.2 - Gujarat Pollution Control Board, as taken in the
affidavit-in-reply:
6.1 According
to respondent No.2, pursuant to filing of the aforesaid petition,
direction was issued to respondent No.3 Electrotherm under Section
31-A of the Air (Prevention and Control of Pollution) Act, directing
closure of the industry. However, thereafter respondent No.3 by
filing an undertaking sought extension of the closure for a period of
two months on the ground that the plant of respondent No.3 is a
continuous integrated steel plant having huge kilns and blast
furnaces requiring constant cooling and continuous flow of
electricity. The extension was further sought on the ground that in
an event of sudden disconnection of electricity, the same may lead to
a major industrial accident.
6.2
According to respondent No.2, as the undertaking was submitted along
with a certificate of Chartered Engineer, extension for closure was
granted by another 15 days in order to avoid any untoward incident.
In order to control the problem of air pollution of the unit at the
grass root level and to analyse it thoroughly, GPCB further directed
that the company should undertake additional measures for controlling
of air-pollution as suggested after comprehensive study of any of the
independent external expert agency of national repute like
IIT-Bombay, National Productivity Council, NEERI etc., and these
additional measures to control pollution are be taken under the
guidance from any of the independent expert agency.
6.3
Respondent No.3 Electrotherm filed an appeal under Section 31 of the
Air (Prevention and Control of Pollution) Act, 1981 before the
Appellate Authority, wherein, vide order dated July 15, 2010 the
Appellate Authority granted stay of the closure order passed by
respondent Board. Respondent company thereafter undertook an
adequacy evaluation of environment management system under the
guidance of National Productivity Council and the report issued by
the National Productivity Council suggests that overall the emission
control system was found to be adequate. The National Productivity
Council has also suggested some technical measures to control the Air
Pollution from the unit. GPCB is monitoring the unit for effective
implementation of the measures taken by the unit as suggested in the
said Report. Officers of the respondent Board made visits of the
unit on July 9, 2010, July 17, 2010 and July 23, 2010 for taking air
sample as required under the Act and the sample analysis report
received by the Board indicates that all the parameters required
under the consent are now within the permissible limit, and
respondent GPCB has instructed its Regional Office to continuously
monitor the industry.
7. Stand
of respondent No.3 as taken in the affidavit-in-reply:
7.1 The
preliminary objection raised by respondent No.3 is that a petition
seeking directions to the Ministry of Environment and Forests to
revoke Environmental Clearance for expansion of its steel plant at
village Samakhiyali, and to compel Gujarat Pollution Control Board
to revoke the N.O.C. and Consolidated Consent and Authorization or
any other consent/permission granted to it is not competent. It is
further stated that the petitioner has no right to compel M.O.E.F. to
revoke the E.C.; that petitioner has no right to compel G.P.C.B. to
revoke the N.O.C. or C.C.A. and G.P.C.B. owes no duty to the
petitioner to do so; that the relief has been sought on assumptions
that environmental norms, E.I.A. Notification 1994/2006 and
directions issued by this Hon'ble Court in the judgment and order
dated 09.12.2004, reported in 2005.4 GLR 3432 are not complied with
and that the assumptions are incorrect.
7.2 It
has been stated by respondent No.3 that petitioner has an
alternative and equally efficacious remedy of appeal before National
Environment Appellate Authority (NEAA) u/Sec. 11 of the National
Environment Appellate Authority Act, 1997, but the same has not been
availed of or exhausted and on this ground alone petition deserves to
be dismissed.
7.3. According
to respondent No.3, petitioner is not a fit person to whom a writ of
this Hon'ble Court in a P.I.L. can be entrusted for the reason that
the petitioner has not filed the petition bonafide for the
enforcement of any public legal right, duty or obligation of the
respondents nos. 1 and/or 2, but has merely lent his name to
Electrotherm's business rivals, who are interested in ruining
its Ductile Iron Pipe (DI Pipe) manufacturing and selling business
having high business potential. After the devastating earthquake of
26.01.2001 in which Kutch was the worst affected area and in which
the towns of Anjar and Bhachau were completely wiped out,
Electrotherm amongst the International Relief Agencies Groups came
out to set up an Integrated Steel Plant at village Samakhiyali in
Taluka Bhachau. It is stated that respondent No.3 - Electrotherm, a
Multi-divisional ISO-9001-2008 certified global Company, is one of
the leading company in India and follows stringent quality control
and environment protection management system. Through engineering
innovations Electrotherm set up in the year 2005 its plant with state
of the art technology for manufacture of DI Pressure Pipes of wide
range for water and Sewage Applications as per IS:8329. According to
respondent No.3 it's DI Pipes provide excellent means of conveyance
of drinking water and they started commercial production of steel
products in 2005.
7.4
According to respondent No.3, the DI Pipe industry in India has
been dominated for over last two decades by a few larger players in
the country, e.g. Electro Steel Casting Limited (ESCL) of Kolkata and
Lanco Kalahasti Castings Limited of Chennai, which has since
amalgamated with ESCL and Saw Pipes Limited (SPL), name later changed
to Jindal Saw Limited (JSL), who have operated during this period
under almost monopolistic market conditions preventing the market
from becoming competitive. As a result, customers, who are mostly
Governments and State Corporations, are losers because of high prices
charged by these monopolistic players.
7.5 That
Electrotherm commenced commercial production of DI Pipes in December
2005 and the petitioner, who for livelihood claims to be a freelance
electrical supervisor based at Vadodara filed the petition nearly
four and half years thereafter on 10.05.2010. It is stated that
Electrotherm's some business rival has searched out the
petitioner to file the petition and that the petitioner is not a
person of means, knowledge or information, who can on his own come
out with a petition of this nature. In the normal course of events
he would have hardly any information or knowledge personally of the
environmental laws hereinbefore mentioned or E.I.A. Notifications or
meaning thereof, which are highly technical matters on which even the
Expert Committee (Industry) Members have not seen eye to eye on
occasions.
7.6
According to respondent No.3, it is an established fact that rival
business interests in this very DI Pipe manufacturing industry have
attempted even earlier through proxies to scuttle industries coming
in the field, which would present a competition and break the
monopoly which limited number of industries enjoy. It is contended
that the petitioner has not claimed any personal damage or injury
resulting to him from his grievances alleged and the claim of the
petitioner that he is a public spirited person has been refuted by
respondent No.3 in its affidavit-in-reply by stating that if the
petitioner was a genuine and bonafide Public Interest litigant and
not an interested and motivated proxy of anyone, he would not have
attempted to mislead this Hon'ble Court by alleging that in
B.K. Sharma's case (supra) this Hon'ble Court has
recorded a finding that the Induction Furnace, which is one of the
types of Foundries under Rule 32 of the Environment (Protection)
Rules, 1986 (for short `the Rules') is `Foundry (Individual)'
as contemplated by Entry 28 of the Schedule I to the E.I.A.
Notification, 1994 and held that manufacture of DI Spun Pipe and DI
Iron-cast (meaning DI Cast Iron Pipes) by using induction furnace
involves foundry work and suppressed what followed the decision of
this Hon'ble Court in B.K. Sharma Vs. Union of India and others
(supra) and sought forthwith closure of Electrotherm's DI Pipe
Industry.
7.7 It
is stated that the petition involves highly technical matters decided
by M.O.E.F. in consultation with its Expert Committee (Industry), as
provided in the E.I.A. Notifications, and that the decisions of
M.O.E.F. on merits are not subject to judicial review. Judicial
review is of the decision making process and not of the decision
itself.
7.8 According
to respondent No.3, the petition involves disputed questions of facts
or mixed questions of facts and law and therefore, it is not
appropriate to be resolved in a petition under Art. 226 of the
Constitution of India.
7.9 It
is reiterated by respondent No.3 that petitioner has approached this
Hon'ble Court on 10.05.2010, i.e. after gross delay after respondent
No.3 commenced its industrial activities, and sought interim reliefs
directing M.O.E.F. to forthwith suspend operation of E.C. granted to
Electrotherm, directing G.P.C.B. to suspend N.O.C., C.C.A. and/or any
other consent/permission granted to Electrotherm and to restrain
Electrotherm from continuing its industrial operations and/or taking
production. Electrotherm started construction of civil works in the
late year 2004, applied on 18.12.2004 and received N.O.C. on
25.02.2005, received C.C.A. for Steel Plant on 10.11.2005 operative
for six months, commenced production of DI Pipes in December 2005,
received N.O.C. for production of DI Pipes and Sponge Iron on
13.09.2006, C.C.A. for Steel Plant was amended on 14.03.2007
operative for a period of five years, received C.C.A. for Sponge Iron
and DI Pipes on 07.12.2009. Electrotherm had received E.C. on
20.02.2008 for production of Sponge Iron, Pig Iron and Captive Power
Plant (CPP) and on 27.01.2010 for expansion of its Project. The E.C.
recites that public hearing was waived under clause 7(ii) of E.I.A.
Notification, 2006. Thus, by 27.01.2010 Electrotherm had received
from appropriate authorities all required N.O.C./C.C.A./E.C., etc.
The petitioner had not taken any action during this period, but filed
the Petition on 10.05.2010 since when the Electrotherm's
industry is running with all the required N.O.C./C.C.A./E.C. For any
breach of the provisions of law governing obtaining prior
N.O.C./C.C.A./E.C., law does not provide any civil consequences and
subsequent grant of N.O.C./C.C.A./E.C. is not invalid on any ground
that the industry had commenced commercial production without prior
obtaining the same. According to respondent No.3, carrying on of
production activities covered by the N.O.C./C.C.A./E.C. after
obtaining the same is permitted by law notwithstanding any prior
non-compliance as alleged. Moreover, the petitioner's conduct
of filing the Petition after Electrotherm received N.O.C./C.C.A./E.C.
is barred by delay, acquiescence and laches apart from the fact that
it is on merits misconceived.
7.10 Respondent
No.3 has denied that grant of E.C. by M.O.E.F. or N.O.C. and C.C.A.
by G.P.C.B. to Electrotherm is illegal or in violation of any
environmental law or E.I.A. Notification of the year 1994 or 2006 or
in defiance of any direction issued by this Hon'ble Court in B.K.
Sharm'a case. It has been further denied that the Project or
products of Electrotherm emit/s hazardous environment pollutants. It
is the say of the respondent that G.P.C.B. in its extension letter
dated 02.07.2010 had directed Electrotherm to get the adequacy
evaluation of the Environmental Management System (EMS) in
Electrotherm's Plant and accordingly, Electrotherm got adequacy
of EMS checked by National Productivity Council, Gandhinagar on
15/16.07.2010, and that NPC submitted its Report dated 29.07.2010 to
the effect that all pollution control norms are well within the
prescribed standards.
7.11 It
is stated by respondent No.3 that G.P.C.B.'s Regional Office at
Bhuj conducted three weekly inspections in July 2010 of the pollution
control system at the Plant and submitted two reports recording that
the pollution norms are within prescribed standards. It is stated
that E.C. under the E.I.A. Notification was not required for all
products mentioned in the N.O.C. (CTE) i.e. Consent to Establish
dated 25.02.2005. It is further stated that Electrotherm's
Pipe Project was not an industry falling within Schedule I to the
E.I.A. Notification dated 27.01.1994, that it was not covered by
Entry No.28 "Foundries (individual)" and that no electric
arc furnace is used therein. Paragraph no.3(b) of the E.I.A.
Notification, 1994 provided inter alia that nothing contained in the
said Notification shall apply to any item falling under inter alia
Entry No.13 of Schedule I, if the investment was less than Rs.100
Crore for new Projects and less than Rs.50 Crore for
expansion/modernization in Projects. The contention of respondent
No.3 is that therefore also, it was not necessary to obtain E.C. for
Induction Furnace, Sinter Plant, Centrifugal Casting Machine (CCM)
and DI Plant since cost of the Project was less than Rs.50.00 cr.
E.I.A. Notification dated 27.01.1994 remained in operation till
14.09.2006 on which it was superseded subject to savings by the
E.I.A. Notification, 2006, which was not in force when Electrotherm
commenced commercial production of DI Pipes. E.I.A. Notification,
2006 has no retrospective effect. Paragraph No.12 of Appendix VI to
the E.I.A. Notification of 2006 provides as follows:-
"12.
OPERATION OF E.I.A. NOTIFICATION, 1994 TILL DISPOSAL OF PENDING
CASES:
From
the date of final publication of this notification the Environment
Impact Assessment (E.I.A.) Notification No.S.O.60(E) dated 27.01.1994
is hereby superseded, except in supercession of the things done or
omitted to be done before such supercession to the extent that in
case of all or some types of applications made were prior
environmental clearance and pending on the date of final publication
of this notification, the Central Government may relax any one or
more provisions of this notification except the list of the Projects
or activities requiring prior environmental clearance in Schedule I,
or continue operation of some or all provisions of the said
notification, for a period not exceeding one year from the date of
issue of this notification."
7.12 According
to respondent No.3 it is incorrectly stated in the site visit report
that as per the E.I.A. Notification, 1994 installation of Induction
Furnaces for production of D.I. Pipes needs E.C. which was not
obtained and that installation of Induction Furnace was covered under
Schedule I (item no.28). E.C. is not required for items enumerated
in the Rules and was required only in respect of items enumerated in
the Schedule I to the E.I.A. Notification, 1994. Listing of
Induction Furnace in Entry No. 32 of Schedule I to the Rules was only
for prescribing permissible standards of emission of environmental
pollutants and has nothing to do with the requirement of E.C.
Schedule I to the Rules contains 86 entries, whereas Schedule I to
the E.I.A. Notification dated 27.01.1994 contains 30 entries of which
Entry No.13(b) lists Electric Arc Furnaces and Entry No. 28 mentions
Foundry (individual). There is no correlation between Entries in the
Schedule to the Rules and those in the Schedule I to the E.I.A.
Notification, 1994 to enable interpretation of an Entry in the
Schedule to the E.I.A. Notification on the basis of an Entry in the
Rules. "Foundry" means an establishment where metal is
melted and liquid metal is poured into moulds for casting metal.
D.I. Spun Pipes or Cast Iron Spun Pipes are cast by centrifugal
casting process and are not foundry products. Foundry (individual)
means a stand alone foundry and not a foundry, which is part of a
composite unit. An Induction Furnace is used for holding molten
metal at given temperature/s and such an Induction Furnace is not
Foundry (individual). Electrotherm had applied to G.P.C.B. on
18.12.2004 for N.O.C. for its Steel Plant and the same was granted on
25.02.2005. C.C.A. for the Steel Plant was granted by G.P.C.B. on
12.11.2005 and the same was amended on 14.03.2007 valid for five
years. G.P.C.B. granted to Electrotherm on 13.09.2006 N.O.C. for
Sponge Iron and D.I. Pipes and that the grant of ex-post facto N.O.C.
and C.C.A. by G.P.C.B. is legal and valid.
7.13
According to respondent No.3, site visit reports are misconceived in
law to a large extent and it has been denied that the respondent
authorities and particularly M.O.E.F. were required to have a site
visit before granting E.C. or that E.C. recommended/granted by
M.O.E.F. without site visit is contrary to law or invalid. It is
further denied that respondent no.1 ignored the site visit report
while recommending grant of E.C. to Electrotherm. E.C. was granted
on 27.01.2010, much before the filing of the Petition on 10.05.2010.
7.14 It
is stated by respondent No.3 that they have not committed any
breaches of environmental laws and submit that the alleged breaches
of environmental law do not entitle the petitioner to obtain the
reliefs prayed for or any relief. It is denied that industrial
activities for which clearance/consent/N.O.C. have been accorded to
Electrotherm are hazardous to public health and/or environment.
7.15 Respondent
No.3 has reiterated that the Petition is not a genuine or bonafide
Public Interest Litigation for enforcement of public rights, duties
and/or obligations, but is a malafide Petition sponsored by
Electrotherm's rival business interests by setting up the
petitioner as their proxy. Electrotherm is not engaged in industrial
activities, which pose any threat to environment due to emission of
hazardous environment pollutants. The petitioner's allegation
to the contrary is totally vague, devoid of material particulars and
unsubstantiated. Sec. 7 of the Environment (Protection) Act, 1986
provides that no person carrying on any industry, operation or
process shall discharge or emit or permit to be discharged or emitted
any environmental pollutant in excess of such standards as may be
prescribed. There is no allegation in the petition that
Electrotherm's pipe industry, operation or process discharges
or emits or permits to be discharged or emitted any environmental
pollutants in excess of the standards prescribed. The prescribed
environmental norms are not absolute, but are directory and require
substantial and not rigid compliance. As held by Hon'ble the Supreme
Court in CERS Vs. Union of India and others (AIR 2000 SC 975) the
need of the environment and the need of economic development are
required to be balanced. As held by this Hon'ble Court in B.K.
Sharma's case (supra) it would be proper and safer to apply the
"Principle of protection" and the "Principle of
Polluter Pays" keeping in mind the principle of "sustained
development" and the "Principle of Inter-generation
Equity". It is denied that industrial activities carried out
by Electrotherm are hazardous to public and/or environment or that
they require stringent observation of the measures stipulated by the
respondents nos. 1 and 2. It is further denied that they have given
a go by to the said environmental norms in granting necessary
approvals for expansion of projects of Electrotherm or at all.
8. Contentions
of the petitioner :
8.1 The
main bone of contention of Mr. Yatin Oza, learned Senior Counsel
appearing for the petitioner is that the environmental clearance
dated 27th January, 2010 accorded by the Ministry of Environment and
Forests, Government of India, pursuant to application preferred by
respondent No.3 dated 20th February, 2008 - Annexure "I" to
the petition is on the face of it illegal and in gross violation of
the Notification dated 14th September, 2006 and the amended
Notification of 2009 as well. Mr. Oza, learned Senior Counsel
invited our attention to the application of respondent No.3 dated
20th February, 2008, which on bare perusal is with respect to
expansion of Pig Iron Plant (150 to 350 TPD). Mr. Oza invited our
attention to paragraph 4 of the said application wherein it has been
stated by respondent No.3 that public hearing/public consultation
meeting was held on 12th June, 2007. Mr. Oza submitted that the
first expansion environmental clearance was accorded in favour of
respondent No.3 dated 30th April, 2008. According to Mr. Oza, this
is suggestive of the fact that the application for expansion of the
plant was prior in point of time i.e. 20.2.2008 whereas the
environmental clearance first in point of time was accorded on 30th
April, 2008. According to Mr. Oza, while granting environmental
clearance dated 27.1.2010, the authority concerned could not have
said that public hearing for the existing plant was held on 12th
June, 2007 and therefore, the same is exempted for the proposed
expansion as per Section 7, clause (ii) of EIA Notification of 2006.
According to Mr. Oza, public hearing took place when there was no
environmental clearance accorded in favour of respondent No.3.
Therefore, for the proposed expansion the public hearing which took
place first in point of time would not cover so far as environmental
clearance for expansion of the plant is concerned. To put it simply,
after the public hearing dated 12th June, 2007, environmental
clearance was granted on 30th April, 2008 and when application for
further expansion in 2009 was preferred, the authorities ought to
have once again given an effective public hearing before granting
environmental clearance and could not have said that the public
hearing dated 12th June, 2007 would even cover the request of
respondent No.3 for second environmental clearance as a result of
expansion of the unit.
8.2 Mr.
Oza further invited our attention to the Notification dated 14th
September, 2006, more particularly Clause 7(ii), which reads as
under:-
"7(ii)
Prior Environmental Clearance (EC) process for Expansion or
Modernization or Change of product mix in existing projects:
All
applications seeking prior environmental clearance for expansion with
increase in the production capacity beyond the capacity for which
prior environmental clearance has been granted under this
notification or with increase in either lease area or production
capacity in the case of mining projects or for the modernization of
an existing unit with increase in the total production capacity
beyond the threshold limit prescribed in the Schedule to this
notification through change in process and or technology or involving
a change in the product mix shall be made in Form I and they shall be
considered by the concerned Expert Appraisal Committee or State Level
Appraisal Committee within sixty days, who will decide on the due
diligence necessary including preparation of EIA and public
consultations and the application shall be appraised accordingly for
grant of environmental clearance."
8.3 Mr.
Oza thereafter invited our attention to the Notification of 2009,
which provides as under:-
".......Following
changes made through notification dated 2009 - after item "c"
the following item shall be inserted, namely....."
Following
changes made through notification dated 2009.
'However,
in case of expansion projects involving enhancement of production by
more than 50%, holding public consultation shall be essential and no
exemption in this regard shall be provided.
8.4 According
to Mr. Oza, the changes effected through Notification of 2009 makes
it very clear that in case of expansion of production by more than
50%, holding of public meeting/ consultation is mandatory and no
exemption in this regard has been provided. According to Mr. Oza,
when public hearing was undertaken on 12th June, 2007, people had no
idea that in future respondent No.3 would go for further expansion of
the unit by enhancing the production capacity and therefore, they had
no occasion to lodge their objections so far as expansion part is
concerned. According to Mr. Oza, during the course of public hearing
dated 12th June, 2007, people opposed the very idea of respondent
No.3 setting up such a unit as it would cause lot of pollution
problems for the residents of nearby places. According to Mr. Oza,
therefore the environmental clearance dated 27th January, 2010 is in
gross violation of the Notifications issued by the Central
Government.
8.5 Mr
Oza contended that the decision to grant Environmental
Clearance by respondent no.1 to respondent no.3 is ex-facie illegal,
arbitrary, unjustified and unsustainable, in facts as well as in law.
He submitted that respondent no.2 ought not have granted NOC/CCA
permitting respondent no.3 to commence its industrial activities
without the said respondent no.3 first obtaining Environmental
Clearance from respondent no.1. The said act of respondent no.2 is
in violation of directions issued by this Hon'ble Court. He drew our
attention to the judgment of this Court in Special Civil Application
Nos. 14460/2004, 14813/2004 and 14819/2004, where in paragraph 41 of
the judgment while referring to the grant of Environmental Clearance
by respondent no.1 i.e. Ministry of Environment and Forests it has
been directed that the Ministry shall seek necessary clarification
from the Expert Committee (industry) and the GPCB-respondent no.2
herein, shall not grant consent to operate for Ductile Iron Pipe
Fittings and Ductile Iron Casting without prior Environmental
Clearance and for Ductile Iron Spun Pipes and Ductile Iron Casting
Pipes without such clarification from the Expert Committee
(Industry).
8.6 Mr.
Oza further contended that the Regional Office at Bhopal of
respondent no.1 conducted Site Visit on 14.09.2009/15.09.2009 and
during the said visits several illegalities and breaches of
environmental laws at the hands of respondent no.3 came to the notice
of respondent no.1 for which vide letter dated 09.10.2009 urgent
action as regards to the report was also sought for. In the said
report the following acts of violation of Environmental Laws were
enumerated :
CC
& A does not show permission for manufacturing of Sponge Iron.
NOC
for establishing Sponge Iron unit with capacity of 6000 MTPM and
D.I. Pipes with 4000 MTPM was granted by the Gujarat Pollution
Control Board on 13.09.2006.
PA
i.e. respondent no.3, has not submitted valid copy of consent for
Sponge Iron and D.I. units.
(iv) Sponge
Iron I (3000 TPM) was commissioned in 2005. D.I. Pipe manufacturing
unit and Sponge Iron II (3000 MTPM) was also commissioned in 2006 and
October, 2008 respectively at the cost of Rs.30.49 crore.
(v) Two
induction furnaces of 20 tones/heat capacity and four crucibles of 20
tones/heat were installed under 2005 which operated 7-8 heats per day
as submitted.
(vi) As
per EIA Notification, 1994 installation of induction furnaces and
D.I. Pipes needs Environmental Clearance which were not obtained.
(vii) The
installation of induction furnace is covered under Schedule-I (Item
No.28) i.e. foundry (individual).
(viii) In
addition, D.I. and Sponge Iron units were found in operation without
valid consent.
(ix) It
was also observed that Old Sinter Plant was also in operation without
effective air pollution control system.
(x) GPCB
has rejected CC & A application vide order dated 31.01.2009. The
industry has reapplied for the CC&A, which was forwarded to HQ
along with their report dated 28-7-2009. During visit, it is observed
that they have installed DI Pipe manufacturing plant, having three
numbers of Continuous Casting Machines (CCM). The first & second
CCM were commissioned in October, 2006 as submitted whereas the third
CCM has been commissioned recently in May, 2009 (Photo-3 & 4).
Although PA claimed that the combined capacity of all the three CCM
is 4000 MT/day but, production date of DI pipe reveals that the
industry has exceeded consented limit during the months January, 09,
February, 09, March, 09, April, 09, May, 09 and July, 09.
(xi) Although
NOC of GPCB dated 13.9.06 indicates manufacturing of DI pipes to the
tune of 4000 MTPM but does not indicate diameter size of pipes. It
was observed that pipe of various sizes are being manufactured.
(xii) Later,
the industry has obtained environmental clearance dated 20/02/2008
for manufacturing of 150 MT/day Pig Iron. The industry has been
granted NOC (CTE) for the same by the Board vide order dated
30/04/2008.
(xiii) During
visit, it has been observed that construction of the BF was going on
and about 90% of the construction work is completed along with Sinter
Plant (Photo-5). It is evident from the records that Sinter Plant
which is in construction was not covered in earlier granted EC. PA
submitted that they have applied for EC for third Blast Furnace
having capacity 18600 MT/Month.
Compliance
report of EC dated 20/02/2008 appears to be unsatisfactory and
detailed report is being sent separately.
8.7 Mr.
Oza submitted that the findings of respondent No.1 would go to show
that though respondent no.3 was required to obtain Environmental
Clearance for Sponge Iron and Ductile Iron Pipes units, the same was
not obtained. For Ductile Iron Pipes and Furnaces Environmental
Clearance was required as the same are in nature of foundry works
falling under Entry No. 28 of Schedule-I to EIA Notification, 1994.
When respondent no.1 itself was clearly of the view that respondent
no.3 had committed breach of environmental norms and that even the
compliance of earlier granted environmental clearance was
unsatisfactory, immediate remedial measures by closing industrial
activities of the respondent no.3 ought to have been taken. However,
despite clearly being of the view that respondent no.3 has committed
severe violation of environmental laws by not obtaining necessary
Environmental Clearance from respondent no.1 and NOC as well as CC &
A from respondent no.2, respondent-authorities did not take any
measures for preventing detriment to health and environment, but on
the contrary recommended case of respondent no.3 for grant of
environmental clearance for expansion of its steel project.
8.8 Mr.
Oza further contended that respondent no.1 ought not have
recommended the case of respondent no.3-industry for grant of
Environmental Clearance. The said respondent authorities could not
have observed in the process of submission of case of the respondent
no.3 that it is not a case of violation. Without conducting a fresh
site visit, the respondent no.1 could not have recommended the case
of the respondent no.3 without satisfying itself as to whether the
environmental norms and requirements of EIA Notification are strictly
complied with and the respondent no.3 now does not carry on its
industrial activities which affect public health and environment.
However, without ensuring strict compliance of environmental norms
and EIA Notification by conducting fresh site visit, case of
respondent no.3 has been recommended by the concerned officers of the
respondent no.1 for grant of environmental clearance.
8.9 Mr.
Oza strongly contended that respondent no.1 ought not have
recommended the case of respondent no.3 for grant of Environmental
Clearance in face of serious breaches of environmental laws committed
by the said respondent no.3 which pose great threat to health and
environment. He submitted that respondent no.3 had not applied for
Environmental Clearance which is a prerequisite condition stipulated
in the EIA Notification, 1994 for a new project, under false pretext
that Environmental Clearance is not necessary as project cost was
less than Rs.50 crore, for Induction Furnace, Sinter Plant,
Continuance Casting Machine and Ductile Iron Plant. He further
submitted that the said reason given by respondent no.3 has been
readily accepted by respondent no.1 while granting Environmental
Clearance, completely ignoring Clause 3 (b) of the EIA Notification,
1994. Clause 3 (b) of the said Notification is set out hereunder :
"3. Nothing
contained in this Notification shall apply to :
(a) xxx
(b) any
item falling under entry Nos. 1, 2, 3, 4 ,5, 9, 10, 13, 16, 17, 19,
*21*, 25 and 27 of Schedule-I if the investment is less than Rs.50
crore."
8.10 Learned
counsel for the petitioner submitted that a bare perusal of the above
referred clause shows that Entry No. 28 pertaining to foundry
(individual) is not covered in the above exclusionary clause. In
that view of the matter, irrespective of the cost of project, once
the product was covered by the Schedule to the Notification, which
was not kept out of the purview of the said Notification, by virtue
of the exclusionary clause 3 (b), prior Environmental Clearance was
mandatory. Even in the Site Visit Report of respondent no.3, it is
categorically mentioned that Induction Furnace is covered under Item
No. 28, Schedule-I and that for Induction Furnace and Ductile Iron
Pipe Environmental Clearance was not obtained by the respondent no.3.
He submitted that Induction Furnaces and Ductile Iron Pipe are
foundries, within the meaning of Item No. 28 of the Schedule-I to the
EIA Notification, 1994.
"FOUNDRY"
as per The Oxford Dictionary reads as under :-
"FOUNDRY"
Works for the casting of metals ;
The
word "casting" has been defined and explained in the
Encyclopedia of Americana as under :-
CASTING
is the process of producing a metal object of desired shape by
pouring molten metal into a mould and allowing the metal to cool and
solidify.
The
word "CASTING" has been given the following meanings in
Webster's dictionary.
1. To
give particular shape to a substance by pouring in liquid or plastic
form into a mould and letting or causing to harden without pressure.
2. Something
that is formed by casting in a mould or form as a reproduction or
copy in the metal or blast
3. Something
that is cast in a mould; specifics; an object (of metal plast or
glasses) cast.
In
the book ''Principles of Metal Casting" authored by Richard W.
Heine, Carl R. Loper, Jr. and Philip C. Rosenthal, a separate chapter
for Ductile Iron is contributed. It has been specifically mentioned
that Ductile Iron requires foundry operation, which are similar to
those for other cast metals. Induction Furnaces are used to melt both
ferrous and non-ferrous metals. There are several types of induction
furnaces, but all create a strong magnetic field by passing an
electric current through a coil wrapped around the furnace. The
magnetic field in turn creates a voltage across and subsequently an
electric current through the metal to be melted. The electrical
resistance of the metal produces heat which melts the metal.
8.11 He
submitted that as per EIA Notification, expansion or modernization of
existing projects or activities based on their potential
environmental impacts as indicated in the Schedule to the said
Notification shall not be undertaken without prior Environmental
Clearance issued by the concerned authority in accordance with the
procedure specified in the said Notification. Referring to a
Certificate issued by the Central Excise Department he submitted that
though no Environmental Clearance was granted by respondent no.1 for
Sponge Iron Unit with production capacity of 6000 MTPM and Ductile
Iron Pipes with production capacity of 4000 MTPM, respondent No.3
commenced the commercial production of Ductile Iron Pipes on and from
23.12.2005 i.e. much before 13.09.2006. Despite the said violation
respondent no.1 subsequently granted Environmental Clearance to
respondent no.3 in respect of expansion of its project at Village :
Samakhiyali.
8.12 Mr.
Oza further submitted that when respondent no.1, having conducted
site visits found severe illegalities and violation of environmental
norms by respondent no.3, the same called for immediate closure of
ongoing industrial activities and rejection of proposal for grant of
Environmental Clearance for expansion. However, taking somersault
from its earlier definite conclusion, respondent no.1 recommended the
case of respondent no.3 for grant of Environmental Clearance as 'no
violation case'. It is shocking to note that the very
respondent-authority which earlier found grave illegalities committed
by the respondent no.3 by violating environmental norms, changed its
mind for the reasons best known to it, without there being any
material change much less any change undertaken by respondent no.3 in
improving the manufacturing process for eradicating /reducing
emission of environmental pollutants to fit in line with the
requirements of environmental norms and EIA Notification, and in that
view of the matter the petitioner seeks indulgence of this Court in
the matter of serious violation of Environmental Norms by respondent
no.3 which pose threat to health and environment in and around
Village : Samakhiyali.
8.13 Mr.
Oza further submitted that recommendation for grant of environment
clearance to respondent no.3, shows that the same is a conditional
one. He submitted that such conditional environmental clearance is
nowhere envisaged. Environmental Clearance can be granted only when
there is strict compliance of environmental norms and EIA
Notification. Environmental Clearance cannot be granted subject to
fulfillment of environmental norms and EIA Notification. The
respondent authorities are enjoined with a statutory duty to see
strict compliance of the environmental norms. In that view of
matter, conditional environmental clearance in the nature of
recommendation of the concerned officers of the respondent no.1 can
not be granted for want of provision to grant such a conditional
environmental clearance.
9. Submissions
made on behalf of respondent No.3
9.1 Learned
Senior Counsel Mr. S.B. Vakil appearing for respondent No.3
vehemently submitted that the Notifications relied upon by the
petitioner dated 14th September, 2006, 11th October, 2007 and 19th
January, 2007 are concocted and fabricated. According to Mr. Vakil,
there is no such Notification available or published in the Gazette
of India. The contention is that such a Notification must be
published in the Gazette of India and only thereafter the same can be
relied upon and can be termed as authentic.
9.2 Mr.
S.B. Vakil, learned Senior Counsel appearing for respondent No.3
vehemently submitted that the contention on behalf of the petitioner
relying upon Notification dated 19th January, 2009 issued by the
Ministry of Environment and Forests that in case of expansion project
involving enhancement of production by more than 50%, holding of
public consultation shall be essential and no exemption in this
regard shall be provided, is without any merit. According to Mr.
Vakil, the Notification dated 19th January, 2009 is only a draft
Notification which proposed an amendment in paragraph 7, clause (ii)
of the Notification dated 14th September, 2006. According to Mr.
Vakil, thereafter the draft amendments as contained in the
Notification S.O 195(E) dated 19th January, 2009 were taken into
consideration by a Committee consisting of Additional Secretary,
Ministry of Environment and Forests and other authorities and finally
the Committee took a decision that the provision of paragraph 7,
clause (ii) contained in the original Notification of 2006 be
retained. The sum and substance of the submission is that the
petitioner cannot rely upon something which was just a suggestion.
9.3 Mr.
Vakil also submitted that this petition is at the behest of rivals of
respondent No.3, who are very much in to the same business and
therefore lacking in bonafides. It is also contended by Mr. Vakil
that Induction Furnace does not require any environmental clearance.
Mr. Vakil also submitted that the Environmental (Protection) Act,
1986, the Environmental (Protection) Rules, 1986 or the Environmental
Impact Assessment Notification 1986 does not provide any civil
consequences for any action done in violation thereof. Section 15 of
the Act provides for penalty for contravention of the provisions of
the Act and the Rules, orders and directions made thereunder.
Applying this principle, Mr. Vakil contended that any violation of
requirements of environmental clearance would not entail any civil
liability e.g removal of construction, demolition of plant, machinery
or equipments installed in the factory including closure of the
production process.
9.4 Mr.
Vakil further contended that the environmental clearance accorded for
expansion of steel plant is dated 27.1.2010, whereas the application
was preferred on 15.6.2010. Therefore, the question whether
post-facto environmental clearance can be given depends upon the
interpretation of the relevant provisions for the grant of
environmental clearance. According to Mr. Vakil, permissibility of
post facto permission/approval/clearance/sanction depends upon
whether action in violation of the statutory duty deserves to be
preserved by regularization. Mr. Vakil also contended that it is the
production process, which substantially causes environmental policy.
Assuming that the three stages i.e. (i) construction of civil work,
(ii) setting up of plant, machinery and equipment and (iii)
commissioning of project for production were completed prior to
obtaining environmental clearance by itself is not sufficient to
order closure of the factory, more particularly when the factory has
been granted permissions, NOC, CCA from GPCB and has been functioning
without violating environmental norms to the satisfaction of policy
controlling authority.
9.5 Lastly,
Mr. Vakil submitted that the impugned environmental clearance dated
27.1.2010 itself provides that any appeal against the environmental
clearance shall lie with the National Environmental Appellate
Authority under Section 11 of the National Environment Appellate Act,
1997 and such an appeal has to be preferred within 30 days.
According to Mr. Vakil, without resorting to such remedy available,
the petitioner could not have preferred a public interest litigation
challenging such environmental clearance.
10. It
appears that when this matter was taken up for hearing on April 1,
2011, this Court thought fit to ask Central Pollution Control Board,
to inspect the premises of respondent No.3 and submit its report to
the Court. The order dated April 1, 2011 reads as under:-
"As the
matter relates to an Environment Clearance granted by the Central
Government, and in public interest, the question of impact of
pollution in the area because of the establishment of the respondent
No.3-Industry has been raised, the matter was earlier discussed.
Learned
counsel, Mr. Vakil, appearing on behalf of the 3rd
respondent-M/s. Electrotherm (India) Ltd. submitted that the 3rd
respondent has no objection, if the Court directs the Central
Pollution Control Board to inspect the premises and submit its report
to the Court.
In the
facts and circumstances, we direct the petitioner to implead the
Central Pollution Control Board through its Chairman, Pollution
Control Board, CGO Complex, Paryavaran Bhavan, Lodhi Road, New Delhi,
as party respondent No.4.
Let notice
be issued on the 4th respondent. Service by Speed Post is
permitted in addition to the normal mode of service.
Post the
matter on 21.4.2011 within ten cases."
11. The
record also reveals that thereafter, the Central Pollution Control
Board, West Zone Office, Baroda placed its report before this Court,
wherein following observations have been made:-
"5.0 OBSERVATIONS
5.1 GENERAL
Following
observations were made during the inspection of M/s. Electrotherm
(India) Ltd.
Out
of the two rotary kilns one was in operation, all the four numbers
of induction furnaces were in operation, steel rolling mill was in
operation, out of two blast furnaces one was in operation, sinter
plant was not in operation, ductile iron pipe manufacturing unit was
in operation, out of two coal fired boilers one was in operation.
The
industry is having Consolidated Consent & Authorisation (CCA)
valid upto 26.07.2011 for the existing capacity.
The
unit is under expansion process to enhance the existing capacity for
various products for which Consent to Establish has been obtained
from GPCB and Environmental Clearance (EC) obtained from MoEF, Govt.
of India.
The
industry is producing some of the products as per expanded capacity
without obtaining valid Consent to Operate (CCA) from GPCB. The
production details for the month of April 2011 obtained from the
industry are given in Annexure-I(B).
The
industry has carried out tree plantation within the periphery which
is in growth phase at present.
Some
of the internal roads within the plant premises are not metalled
resulting in heavy suspended dust on these roads due to frequent
movement of heavy vehicles. The industry has provided mechanised
sprinklers at many locations besides manual sprinkling of water to
suppress the dust suspension.
The
unit had excessive water spray/sprinkling during the visit to
suppress the dust which resulted in water stagnation at different
locations (Annexure -V photograph No - 2 & 3) but at the
same time not having proper drainage/collection system.
The
raw materials such as iron ore, dolomite etc. are stored in open
space without proper shed, leading to fine dust suspension in the
ambient air.
The
height of the stack attached to the coal crushing unit is about 18 m
against the consented norm of 25 m.
The
coal storage area is covered with shed and practising manual water
sprinkling to minimize the fugitive emission. However, it is
desirable to have mechanized water sprinkling system for better
control.
As
required under Environmental Clearance, the unit has not yet
established on-line ambient air quality monitoring and also
continuous stack monitoring facilities.
The
industry reportedly has been monitoring ambient air quality at five
locations on piece-meal basis now and then but not as per National
Ambient Air Quality Standards, Environment (Protection) Rules,
Seventh Amendment, Notified dated, 16.11.2009.
2. In
para 6.0 results and discussion have been made and for rectification
measures, recommendations have been made at para 7.0, as quoted
hereunder :-
"6.0 RESULTS
AND DISCUSSION
From
the field visit and monitoring results the following conclusions are
drawn:
Ambient
air quality was assessed in terms of three critical parameters viz.
Particulate Matter (PM10), Nitrogen Dioxide (NO2)
and Sulphur Dioxide (SO2). The results revealed that PM10
was exceeding the prescribed norms of 100 µg/m3
at all the three monitoring locations; however NO2 and
SO2 values were found within the prescribed norms
80µg/m3.
The
Ambient Noise Levels at all the three locations were found within
the prescribed norms of 75 dB(A) in the day time (6.00 AM to 10 PM)
and 70dB (A) in the night time (10.00 PM TO 6.00 AM).
The
stack emission results for Particulate Matter (PM), Oxides of
Sulphur (SOX) and Oxides of Nitrogen (NOX) in
four stacks attached to rotary kiln, induction furnace, blast
furnace and captive power plant were found within the prescribed
GPCB norms.
The
fugitive emission values near coal crushing area and product
processing area shows that the monitored values are within the
prescribed limit of 2000 µg/m3
(Env (Protection) Fourth Amendment Rules, 2008 Notified by G.S.R.
414 (E), Dated 30.05.2009)
7.0 RECOMMENDATIONS
The
unit should setup online continuous ambient air quality monitoring
and recording facility as per EC at a location in consultation with
Gujarat Pollution Control Board so that data can be accessed at any
given point of time.
The
unit should setup online stack gas analysers with recorders as per
EC.
All
the inner roads in the plant need to be metalled/concreted in order
to avoid the air borne dust suspension during vehicular movement.
The
raw material storage area should be fully covered. Also the raw
material preparation area viz. screening, crushing units and
transfer points should be covered and equipped with mechanical water
sprinkling systems.
The
area covered with water sprinkling system should be concreted and
also provided with proper drainage system to drain the sprinkling
water. Also industry should avoid excess water sprinkle for dust
suppression.
The
industry should develop thick green belt all along the plant
boundary in order to mitigate the dust pollution.
The
height of the stack attached to the coal crushing unit should be
increased to 25 m in compliance with the consent condition with
proper stack monitoring facility.
The
approaching ladder attached to the 65 TPH FBC Boiler' stack needs
modification for convenient monitoring. This may be done by putting
spiral ladder instead of steep monkey ladder.
The
unit should operate the manual ambient air quality monitoring
stations as per the National Ambient Air Quality Standards,
Environment (Protection) Rules, Seventh Amendment, Notified dated
16.11.2009.
Industry
should stop excess production (expanded capacity) without valid
consent to operate (CCA) from GPCB.
12. After
Central Pollution Control Board submitted it's report, respondent
No.3 by filing a further affidavit-in-reply clarified as under:-
12.1 That
one out of the Rotary Kilns, one Blast Furnace and the Sinter Plant
stated in the Report to be not in operation are for the Expansion
Project and not the existing Project. It is stated that only one
Coal Fired Boiler is required to be operated for running the existing
Plant and the other Coal Fired Boiler is a standby Boiler, which on
the date of C.P.C.B. inspection was under maintenance.
12.2 It
was submitted that there are several sources, which contribute to the
level of Particulate Matter in the Ambient Air e.g. vehicular
emissions, industrial sources, road conditions, railway movement and
other articles in that particular area causing dust emissions. The
factor such as dust storm, high wind flow can also cause increase in
the dust level in AAQ. Electrotherm factory is located on the
National Highway No.8, where a large number of vehicles move towards
Kandla Port and Mundra Port and return back after loading-unloading
round the clock thereby causing significant contribution of RSPM to
AAQ. There are a number of industries in the nearby area of
Electrotherm's Plant and a Railway line passes nearby the Unit
and contributes RSPM in AAQ of the area. Electrotherm's
industry is located in the Kutch Region, which is known for high wind
velocity and sandy soil characteristics. Sandy soil becomes airborne
by high wind velocity in the area and contributes to the high RSPM in
AAQ. It is for the first time by an Office Memorandum dated
06.04.2011 issued by the Government of India, Ministry of Environment
and Forests (MOEF) that all mega projects including Integrated Steel
Plants with a capacity of one million TPA (Tonnes per annum) and
above, which have already been accorded Environmental Clearance, are
required to comply with an additional condition of continuous
monitoring of stack emissions as well as AAQ (as per notified
standards) to be carried out and continuous records to be maintained.
Before Electrotherm received Environmental Clearance (EC) on
20.02.2008 its existing capacity for the main products sponge iron
and pig iron was 200 MT per day, which was expanded under the said EC
to 350 MT per day or 1,26,000 MT per year, which is far below one
million TPA required for application of the said Office Memorandum.
In the (i) NOC received on 25.02.2005, (ii) CCA for Steel Plant
received on 10.11.2005, (iii) amended CCA dated 14.03.2007 for the
Steel Plant, (iv) CCA received on 07.12.2009 for sponge iron and DI
pipes, (v) EC dated 20.02.2008 or (vi) EC dated 27.01.2010
(pp.224-231) for the expanded Steel Plant there was no requirement
mentioned that Electrotherm should provide online continuous AAQ
monitoring and recording facility. The recommendation that
Electrotherm Unit should set up online continuous AAQ monitoring and
recording facility as per EC appears to be in ignorance of the fact
that the said Office Memorandum does not apply to Electrotherm Unit.
The cost of providing online AAQ monitoring would be from Rs.40 lac
to Rs.50 lac and the time required for installing the same would be
about three months. Electrotherm has already set up four AAQ
monitoring stations in consultation with G.P.C.B. and is regularly
carrying out monitoring as per the guidelines of C.P.C.B./G.P.C.B.
12.3 It
is further submitted by respondent No.3 that in Ann. I(A) to the
Report of C.P.C.B. the existing capacity in MT/month, the proposed
capacity meaning proposed expansion capacity in MT/month and total
capacity of the expanded project in MT/month have been given. For
the purpose of production of the expanded project Electrotherm has
installed one Rotary Kiln, one Blast Furnace and one Sinter Plant.
Electrotherm by its letter dated 08.06.2009 applied to GOI, MOEF for
EC for expansion of its Steel Plant, which was granted on 27.01.2010.
Electrotherm made an application dated 03.03.2010 for Consent to
Establishment (NOC) u/Sec.26 of the Water Pollution Act and Sec.21 of
the Air Pollution Act. G.P.C.B. granted Consent to Establishment
(NOC) dated 03.01.2011. Electrotherm made an application dated
20.01.2011 for Consolidated Consent/ Authorization (CC&A) i.e.
Consent to Operate to the Regional Officer, Regional Office,
G.P.C.B., Bhuj, which the Regional Office forwarded to G.P.C.B.'s
office at Gandhinagar and the same is pending. Further, the
production of Sponge Iron and Blast Furnace (Pig Iron) in Ann. I(B)
is within existing limits and in respect of these two items there is
no production in April 2011 which can be said to be under proposed
expansion. Pursuant to the grant of EC and CTE i.e. NOC Electrotherm
carried out establishment of its Plant for expanded capacity of
production by modifying the existing Plant. Electrotherm had not
sought to establish expanded capacity of production by establishing a
separate Plant as after establishment of expanded capacity of
existing Plant by modernization, production was taken on modernized
Plant. Though Electrotherm had as aforesaid applied for CC&A,
which u/Sec.21(4) of the Air Pollution Act within four months of the
making of the application. The production limit under the existing
CC&A was inadvertently crossed without however any intention on
the part of the Electrotherm to take production under the expanded
limit without receiving CC&A.
12.4 It
is the say of respondent No.3 Electrotherm that they had constructed
about 3000 mts. length of RCC roads in the Plant premises and after
inspection and recommendations of National Productivity Council
Electrotherm constructed additional 1500 mt. RCC road. After the
present recommendations of C.P.C.B. Electrotherm has planned to
construct within three months internal RCC roads between its Captive
Power Plant to Sponge Iron Plant. Electrotherm has also provided
mechanized water sprinkling system along both the sides of the road.
Electrotherm will take particular care to avoid excessive water
spray/sprinkling which may cause water stagnation. According to them
if water spray/sprinkling is properly carried out without resulting
into excessive water spray/sprinkling, no drainage for draining
sprayed or sprinkled water on the internal roads may be necessary.
On RCC roads water is required to be sprinkled or sprayed only for
clearing and not for settling dust. For rain water drainage
Electrotherm has provided effective drainage system. According to
them, they had already developed green belt in 25 Hectares area in
the Plant premises. Electrotherm is also conducting tree plantation
programmes in nearby villages. Recently, during the occasion of
World Environment Day on 05.06.2011 Electrotherm planted 3000 trees
of local and mixed species as per C.P.C.B. guidelines. Electrotherm
carries out regularly every year this kind of tree plantation drives.
Electrotherm has provided three covered sheds for storage of raw
material viz. coke and coal and two fully covered storage jars for
storage of ferro alloys and fluxes. Electrotherm also installed
mechanized stationary type water sprinkling system in the raw
material storage area. In all Steel Plants Iron Ore and Dolomite,
which are brought straight from the mines in huge quantities are
stored in open space and not under any shed. These raw materials are
transported by trucks and unloaded in the open storage area.
However, transport of these raw materials to the factory is required
to be done by huge JCB and Pay Loaders. Storage of these raw
materials under sheds would hinder the loading and unloading
operations.
12.5 It
is further submitted that Electrotherm has started the work of
increasing the height of the stack attached to the Coal Crushing Unit
to 25 mts. Electrotherm would provide simultaneously proper stack
monitoring facility. The approaching ladder attached to the 65 TPH
(Tonnes Per Hour) Fluidized Bed Combustion Boiler Stack in the
submission of Electrotherm does not need modification by putting
spiral ladder instead of steep monkey ladder. The ladder is meant
only to approach the window from which stack smoke samples are
collected once in a week. There is no requirement of EC, CTE or CC&A
to provide a spiral ladder for the Stack. The monkey ladder is
convenient and safe to climb up and there has been no accident
resulting from the use of the monkey ladder. Electrotherm has
provided on line Stack Monitoring Systems in all major Stacks and
monitors particulate matter and gases in the stack as per the
Notification.
13. Discussion
and findings:
Before
adverting to the main issue in question, we would like to deal with
the common contention canvassed by all the respondents as regards
alternative remedy available to the petitioner in the form of an
appeal before the National Environmental Appellate Authority under
Section 11 of the National Environmental Appellate Act, 1997. It is
true that power of the High Court to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and cannot be
curtailed by other provision of the Constitution or a Statute but the
High Courts have imposed upon themselves certain restrictions on the
exercise of such power. One of such restrictions is that if an
effective and efficacious remedy is available, the High Court would
not normally exercise its jurisdiction under Article 226 of the
Constitution. But again, this rule of exclusion of writ jurisdiction
on account of availability of an alternative remedy does not operate
as an absolute bar to entertaining a writ petition but is a rule of
discretion to be exercised depending on the facts of each case. On
this aspect, the following observations by the Constitution Bench of
the apex Court in A.V Venkateswaran, Collector of Customs Vs.
Ramchand Sobhraj Wadhwani & anr. - AIR 1961 SC 1506, which still
holds the field are quite apposite:
The
passages in the judgment of this Court we have extracted would
indicate (1) that the two exceptions which the learned Solicitor
General formulated to the normal rule as to the effect of the
existence of an adequate alternative remedy were by no means
exhaustive, and (2) that even beyond them
a discretion vested in the High Court to have entertained the
petition and granted the petitioner relief notwithstanding the
existence of an alternative remedy. We need only add that the broad
lines of the general principles on which the Court should act having
been clearly laid down, their application to the facts of each
particular case must necessarily be dependent on a variety of
individual facts which must govern the proper exercise of the
discretion of the Court, and that in a matter which is thus
preeminently one of the discretion, it is not possible or even if it
were, it would not be desirable to lay down inflexible rules which
should be applied with rigidity in every case which comes up before
the Court.
In
Harbanlal Sahnia & anr. Vs. Indian Oil Corporation Limited
and ors. (2003) 2 SCC 107, enumerating the contingencies in which the
High Court could exercise its writ jurisdiction in spite of
availability of the alternative remedy, the apex Court observed thus:
........that
the rule of exclusion of writ jurisdiction by availability of an
alternative remedy is a rule of discretion and not one of compulsion.
In an appropriate case, in spite of availability of the alternative
remedy, the High Court may still exercise its writ jurisdiction in
at least three contingencies (i) where the writ petition seeks
enforcement of any of the fundamental rights; (ii) where there is
failure of principles of natural justice, or (iii) where the orders
or proceedings are wholly without jurisdiction or the vires of an Act
is challenged.
We
are of the opinion that on the facts of the present case, more
particularly when petition is of the year 2010 and notice was issued
upon the respondents and when they have appeared and have opposed the
petition by filing affidavit-in-reply, now at this stage it would be
unreasonable to say that the petitioner has an alternative
efficacious remedy before the National Environmental Appellate
Authority under Section 11 of the National Environmental Appellate
Act. We thus, reject the preliminary contention in this regard and
proceed further to examine the matter on its own merit.
14. Having
heard learned counsel for the respective parties and having gone
through the materials on record, we find that the following facts are
not in dispute.
(a) Respondent
No.3 - Electrotherm set-up a steel plant at village Samakhiyali for
manufacturing products like Sponge Iron, Ductile Iron Pipes, Pig Iron
in Blast Furnace, Steel Rolling Mill, M.S. Billets / Bars, Stainless
Steel Billets, Alloy Nickel etc. in the year 2005. This is apparent
from the fact that NOC for establishing Sponge Iron unit with
capacity of 6000 MTPM and Ductile Iron Pipes with 4000 MTPM was
granted by GPCB on 13th September, 2006.
(b) As
per EIA Notification 1994, installation of Induction Furnace and D.I
Pipes needs environmental clearance from the Ministry of Environment
and Forests, Government of India, as Induction Furnace is covered
under Schedule I (Item No. 28) i.e. Foundry.
(c) Respondent
No.3 started its unit in the year 2005 for manufacture of Pig iron,
Blast Furnace having capacity of 5833 MT/Month. Record reveals that
the first NOC (CTE) in this regard was granted dated 25th
February 2005. Two induction furnaces of 20 tons/heat capacity each
and four crucibles of 20 tons/heat each were also installed during
2005.
(d) It
appears that for the first time environment clearance was accorded
by the Government of India, Ministry of Environment and Forests vide
order dated 20th February 2008 and that too pursuant to
the application preferred by respondent no.3 for expansion of Pig
Iron Plant (150 to 350 TPD) with Captive Power Plant (24MW) and WHRB
(6 MW). Before according this environment clearance, public
hearing/public consultation was held on 12th June 2007
and, thereafter, the environment clearance was granted..
(e) Record
further reveals that thereafter once again respondent no.3 applied
with the Government of India, Ministry of Environment and Forests for
environment clearance vide their Application dated 8th
June 2009, and while according environment clearance vide order dated
27th January 2010, the authority concerned stated in the
order that public hearing for the existing plant was held on 12th
June 2007 and, therefore, for the purpose of granting environment
clearance pursuant to the application preferred by respondent no.3
dated 8th June 2009 for expansion of steel plant, the
public hearing is exempted as per Section 7(ii) of EIA Notification
2006.
(f) The
EIA Notification dated 14th September, 2006 as referred to above
provides that all applications seeking prior environmental clearance
for expansion with increase in the production capacity beyond the
capacity for which prior environmental clearance has been granted
under this Notification or with increase in either lease area or
production capacity in the case of mining projects or for the
modernization of an existing unit with increase in the total
production capacity shall be made in Form I and such application
shall be considered by the concerned expert appraisal committee or
State level expert appraisal committee within sixty days, who will
decide on the due diligence necessary including preparation of EIA
and public consultations.
15. So
far as Notification dated 9.1.2009 is concerned, we are convinced
that the same was a draft Notification wherein an amendment was
suggested in paragraph 7(ii) of the earlier Notification dated 14th
September, 2007 to the effect that in case of expansion projects
involving enhancement of production by more than 50%, holding of
public consultation shall be essential and no exemption in this
regard shall be provided. We have noticed that the amendments as
suggested by way of draft Notification were taken into consideration
by a Committee constituting of (1) Additional Secretary, Ministry of
Environment and Forests, (2) Chairman, Central Pollution Control
Board, (3) Advisor (Retd.), Ministry of Environment and Forests,
Government of India, (4) Member Secretary (Retd.), Central Pollution
Control Board, (5) Advisor, Ministry of Environment and Forests,
Government of India, and (6) Director, Ministry of Environment and
Forests, Government of India, who in turn gave their report dated
30th October, 2009. In the report, they took into consideration the
amendment which was suggested referred to above in paragraph 7(ii) of
the earlier Notification of 2006 and the Committee in turn offered
their comments as under:-
"Comments
:
i. Everybody
tries to show that it is less than 50% and avoid the public
consultation. The expanded product may be more hazardous product then
even 10% increase is dangerous. There are some products, the
production may be in kgs, but the pollution load that it generates
will be far more than that of a product that produces tonnes. This
was encountered while we are in task force committee APPCB.
Therefore, this must not be included and thus, all such expansions
shall hold public consultation before Expert Committee process.
This
amendment will only work, if the proposed amendment in para 2, after
sub-para (iii) is deleted.
What
about the impact of production increased less than 50% ? Do not they
have any impact ?
The
project proponents when they submit the proposal for Environmental
Clearance at the stage of TOR should mention the full capacity of
the project and they may suggest phase wise implementation. In such
a case the public consultation could be held as per the procedures
laid down for the full capacity of the project.
(b)
They could implement the clearance given in phases as in most of
the power projects and they need not got to the public consultation
again of the remaining phases.
(c)
It is also to be noted that Environmental Clearance is given for a
specific period and the validity is five years. The project
proponents may be requested to submit an EMP and revised modelling
exercise based on the post project monitoring database taking in to
account the development and establishment of other industries within
the impact area during the five years if the expansion is not taken
up with the EC validation period of five years. This is to ensure
that proper safeguards could be introduced in regard to pollution
control systems, so that the resultant ground level concentrations
remain within the stipulated limits.
(d)
Holding of public consultation could then be recommended if the
above mentioned studies indicate a requirement due to high levels of
ground level concentrations.
However,
in case of expansion projects involving enhancement of production up
to 50%, holding of public consultation shall not be required. For
projects involving enhancement of production capacity beyond 50%
exemption in Public Consultation can be considered by concerned SEAC
or EAC for cases which don't involve additional land acquisition and
pollution load, with adequate mitigatory measures to achieve the
ambient environmental standards. In case of on-site expansion even
more than 50% of production capacity where adequate pollution
mitigation measures taken, no public consultation is required.
This
can be seen in conjunction with the amendment given in para 7(ii).
There is a contradiction in statements that EC is not required for
no change in pollution load, whereas para 7(ii) insists on a public
hearing for more than 50% increase in production capacity.
This
defeats the very purpose of setting the industry in a notified
industrial complex. Further if the exemption is really to go away
for some reasons then the possibility of state authorities' role in
objectively deciding the need of public hearing can be stipulated.
If
para (I) of the proposed amendment were to be notified then the
above amendment would be in direct contradiction of para (I).
In
regard to para 7(ii) relating to prior environmental clearance (EC),
the process for expansion/ modernization or change of product mix in
existing projects, public consultation shall be essential only for
new projects and not for existing projects. Accordingly, the Clauses
should be amended to state that respective of percentage of
enhancement of production a New EC may be insisted upon, however
doing away with public consultation.
As
regards expansion projects involving enhancement of production by
more than 50% necessitating public consultation, it is proposed that
the insertion should altogether be deleted/ removed as in any case
if the proposal does not add to the pollution load and or additional
water and or additional land; it would be illogical to impose
restraint on enhanced production.
The
decision on whether a public consultation is required depends on the
project or activity. The decision of whether public consultation is
needed or not needed should be left to the EAC or SLEAC rather than
putting a mandatory condition of expansion beyond 50% as is the case
in the 2006 EIA notification. This para should be deleted.
This
would be in conflict with the proposed amendment at Para2,
sub-para(iii). Moreover, this provision will only delay
modernization/ cleaner technology implementation programs in
existing projects.
Industries
located in Notified Petrochemicals Complex area may be excluded from
Public Hearing as such units are falling in the approved and
dedicated industrial belt, intended for the growth of industries.
Nevertheless
in the event of non-acceptance of Amendment No.(1), the last para be
modified as under:
However in case of expansion projects
involving enhancement of production, local public consultation
restricted to the villages/ population involved in the additional
land intake, if any, shall be essential and undertaken.
.
This
clause would be made applicable only for Chemical manufacturing
companies who are mandated to obtain environmental clearance as per
main Notification. It should not be applicable for expansion of
infrastructure such as Chemical warehouses, Chemical storage
installations, Chemical transfer Pipelines (Outside Factory) etc.
(b)
The meaning of word "Public Consultation" should be
clarified. Does it mean public hearing ?
In
para 7 sub-para(ii) : should add at end
However Expert
Appraisal Committee may exempt in some specific cases depending upon
the significant impact on environment
.
In
the final analysis, the Committee suggested as under:-
"Analysis
:
The
intention of this amendment is to appraise only those projects which
cause significant impacts and avoid time delays. However during the
discussion it was brought out even within the same activity 50% means
different for different base capacities and ultimately it may not
serve the purpose. In addition, in certain sectors even very small
quantity expansion would create environmental problems. Further other
than industry and mining sector there is a problem of quantifying
activities in terms of capacities. If the intention of the amendment
is to appraise only the projects with significant impacts, then
merely specifying a limit of more than 50% for the production
enhancement will not serve the purpose.
Recommendation
:
The
existing provision as contained in the original Notification of 2006
be retained."
16. Thereafter,
the Ministry of Environment and Forests issued a final Notification
dated 1st December, 2009, which was published in the Official Gazette
of India, and the final notification does not contain any amendment
as suggested earlier by way of a draft. Such being the position, the
picture that emerges is that Paragraph 7(ii) of the Notification
dated 14th September, 2006 issued by the Ministry of Environment and
Forests remains unaltered. However, what is important so far as the
present case is concerned, is the final analysis drawn by the
Committee of experts that if the intention of the amendment is to
appraise only the projects with significant impacts, then merely
specifying a limit of more than 50% for the production enhancement
will not serve the purpose. On the respondent No.3's own saying the
production capacity came to be enhanced upon expansion of the unit by
more than three times. This will definitely have a very significant
impact so far as environment is concerned and we have no doubt in
this regard.
17. It
is difficult for us to appreciate the contention of Mr. Vakil that
plain reading of paragraph 7(ii) of the 2006 Notification merely
suggests that whether to give public hearing/public consultation
would be within the discretion of the authority. We do not find any
merit in the contention that public hearing/public consultation as
provided in paragraph 7(ii) of the 2006 Notification is directory and
not mandatory.
18. The
facts to a certain extent have disturbed us for the simple reason
that respondent no.3 set-up its unit of steel plant in the year 2005
and started operating the same fullfledge. However, till 2008 they
had no environment clearance and it is only for the first time vide
order dated 20th February 2008 environment clearance was
granted and that too for expansion. Subsequently, once again in 2009,
they applied for environment clearance as they proposed to increase
the production capacity almost three times the existing capacity, for
which also environment clearance was granted but without giving any
public hearing or public consultation.
19. Thus,
the only question for our consideration is as to whether the
environmental clearance dated 27.1.2010 can be termed as illegal in
the absence of public consultation or public hearing as mandatorily
provided by Notifications dated 2006. We agree with learned Counsel
Mr. Oza that there is a basic flaw in the environmental clearance
granted in favour of respondent No.3. It is apparent that when
public hearing took place in the year 2007, the same was on the basis
of the first application which respondent No.3 had preferred for
expansion of the steel plant. Objections were raised by the persons
concerned. However, when environment clearance came to be granted
vide order dated 27th January 2010 pursuant to the second application
dated 8th June 2009 preferred by respondent no.3 for enhancing the
production capacity, the requirement of public hearing/public
consultation was waived by the authority on the assumption that in
the year 2007 public hearing was already undertaken. It is undisputed
that in the year 2007 when the public hearing was given, the
objections and suggestions were taken into consideration by the
authority and environment clearance was accorded in the year 2008
but, thereafter, when the second application was preferred dated 8th
June 2009 for enhancing the production capacity by more than double,
people were not made aware of this proposal of respondent no.3 and
the authority proceeded to accord environment clearance waiving
public hearing.
20. While
it is true that the nature of the public hearing may not be in the
nature of an adjudicatory hearing, one cannot lose sight of the fact
that the persons who lodge their objections or make suggestions
before the committee are not only entitled to get copies of the
minutes of the meeting at the public hearing, but ultimately if the
Central Government grants the environmental clearance, under S.11 of
the National Environmental Appellate Authority Act, 1997, they also
have a right to prefer an appeal to the Appellate Authority against
the order granting environmental clearance. Section 11(2) of the said
Act also defines "person" as any person who is likely to be
affected by the grant of environmental clearance or any association
of persons (whether incorporated or not) likely to be affected by
such order and functioning in the field of environment.
21. In
a very recent pronouncement of the Supreme Court in the case of
Lafarge Umiam Mining Private Limited; T.N.Godavarman Thirumulpad v/s.
Union of India and others, reported in (2011)7 SCC 338, the Supreme
Court in so many words in paragraph 122(xiv) has observed as under :
The
public consultation or public hearing as it is commonly known, is a
mandatory requirement of the environment clearance process and
provides an effective forum for any person aggrieved by any aspect of
any project to register and seek redressal of his/her grievances.
Taking
into consideration the importance of public hearing and also taking
into consideration the decision of the Supreme Court in the case of
Lafarge Umiam Mining Private Limited Vs. Union of India (supra), we
are left with no other option but to declare that the environmental
clearance dated 27th January, 2010 is illegal and not tenable in law.
We therefore set aside the environmental clearance dated 27th
January, 2010 granting liberty to respondent No.3 to once again apply
with the Ministry of Environment and Forests, Government of India for
fresh environmental clearance on the basis of their earlier proposal
dated 8th June, 2009 for expansion of the unit. Upon such
application being preferred by respondent No.3 for environmental
clearance, respondent No.1 shall consider the same in accordance with
law by following the procedure as prescribed under the Notification
dated 14th September, 2006. Since we have set aside the
environmental clearance dated 27th January, 2010, the respondent No.3
shall stop the operation of the entire plant and shall start
operating only after fresh environmental clearance is accorded in
their favour by the Ministry of Environment and Forests, Union of
India.
(Bhaskar
Bhattacharya, Actg. C.J.)
(J.B.Pardiwala,
J.)
FURTHER
ORDER
After
this order is passed, Ms Acharya, the learned advocate appearing on
behalf of the private-respondent prays for stay of operation of our
order.
In
view of the order being passed above, we find no reason to stay our
order. Prayer is refused. However, certified copy of the order be
handed over to the concerned respondent in the course of this day, if
applied for.
(Bhaskar
Bhattacharya, Actg. C.J.)
(J.B.Pardiwala,
J.)
FURTHER
ORDER
In
the morning, after delivery of the judgment, Ms. Acharya, the learned
Advocate appearing on behalf of the respondent prayed for stay of
operation of our order and we refused such prayer. Subsequently, Mr.
Vakil, the learned Senior Advocate appearing on behalf of the said
respondent had mentioned the matter before rising of the Court in the
afternoon pointing out that the plant involved which manufactures
Structural steel, DI pipe, Alloy steel and other related products
requires minimum ten days' time for cooling down and it cannot be
abruptly shut down, and in the event of stoppage of either
electricity or water supply, there are chances of major
breakdown/blasts causing severe damage to human lives and property.
In
view of such facts, we modify our earlier stay order to the extent
that by virtue of our order, there should not be any new production
from today and the plant of the respondent should be shut down after
complying with all technical formalities required for shutting down
such plant. However, at any rate, the plant should be completely
shut down within ten days from today. GPCB and the Union of India
are directed to see that except shutting down the plant pursuant to
our earlier order, no new production is made henceforth unless the
respondent obtains appropriate orders from the higher forum.
The
certificate issued by Chartered Engineer placed before us be kept
with the records.
(Bhaskar
Bhattacharya, Actg. C.J.)
(J.B.
Pardiwala, J.)
*/Mohandas
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