20. Admittedly, the projects of the members of the petitioner fall under category “B” and as such they were obliged to get EC from SEIAA, Jharkhand before starting the projects which they failed to do.
21. The learned Senior Counsel for the petitioner has contended that the members of the petitioner could not get EC due to absence of duly constituted SEIAA as per EIA Notification, 2006. The said contention has however been heavily opposed by the learned counsel appearing on behalf of SEIAA, Jharkhand (the respondent no. 4) submitting that all the construction work of petitioners had commenced prior to expiry of tenure of erstwhile SEIAA, Jharkhand i.e., 09.11.2019 and as such the members of the petitioner cannot escape from the responsibility of obtaining prior EC on the ground that at some point of time, the SEIAA, Jharkhand was not functioning. The learned counsel for the respondent no. 4 has further contended that even if the SEIAA, Jharkhand was not functioning for certain period, the proposal could have been submitted to the EAC at Central level in the absence of SEIAA/SEAC in the State/UTs in view of EIA Notification, 2006. In support of the said contention, the learned counsel for the respondent no. 4 has referred clause-4 of the EIA Notification, 2006 which reads as under:—
“4. Categorization of projects and activities:—
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(iii) All projects or activities included as Category ‘B’ in the Schedule, including expansion and modernization of existing projects or activities as specified in sub paragraph (ii) of paragraph 2, or change in product mix as specified in sub paragraph (iii) of paragraph 2, but excluding those which fulfill the General Conditions (GC) stipulated in the Schedule, will require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory level Expert Appraisal Committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category ‘B’ project shall be treated as a Category ‘A’ project;”
22. In view of the aforesaid stipulation, even if it is assumed that the projects of the members of the petitioner had started during the period when the SEIAA, Jharkhand was not functioning, the petitioner cannot claim the benefit of the said fact, since its members could have applied before the EAC at Central level for grant of EC and thus the contention of the learned Senior Counsel for the petitioner that the EC could not be obtained by the members of the petitioner due to non-functioning of SEIAA, Jharkhand at the relevant time, has no leg to stand.
23. One of the contentions of the learned Senior Counsel for the petitioner is that the projects of the members of the petitioner are similar to that of the High Court of Jharkhand building for which EC has been granted by SEIAA, Jharkhand and as such on the same terms and conditions, the cases of the members of the petitioner may also be considered. The learned counsel appearing on behalf of the respondent no. 4 has refuted the said contention of the learned Senior Counsel for the petitioner by submitting that the case of High Court of Jharkhand building is not similar to the present case as its proposal for grant of EC was submitted under the violation category within the window period opened in view of S.O. 804(E) dated 14.03.2017 which was subsequently granted on the terms and conditions as well as by following the procedure specified in the said notification. Admittedly, the members of the petitioner failed to move any application within the window period and as such they cannot claim similar treatment.
24. Learned Senior Counsel for the petitioner assailing the impugned notices, has assiduously argued that the same have been issued without giving any opportunity of hearing to the members of the petitioner and as such those suffer from violation of the principles of natural justice.
25. To appreciate the aforesaid contention of the learned Senior Counsel for the petitioner, I have gone through the contents of the impugned notices which inter alia mention that the National Green Tribunal, vide order dated 09.09.2020 passed in O.A No. 45/2019/EZ, directed that all ongoing constructions undertaken without obtaining prior EC shall be stopped forthwith until the Environmental Clearance is obtained and in this regard, instruction of Urban Development and Housing Department vide letter no. 1089 dated 31.08.2020 has been obtained. Some of the impugned notices refer the direction of Town Commissioner, Ranchi Municipal Corporation according to which if the noticees have not obtained environmental clearance, they must stop the construction activities immediately and submit the environmental clearance, failing which action will be initiated under the provisions of the Jharkhand Municipal Act, 2011.
26. In view of the aforesaid fact, it is evident that the impugned notices have been issued to the members of the petitioner by the Town Planner, Ranchi Municipal Corporation, Ranchi/Executive Officer, Municipal Council, Ramgarh just to comply the order of the NGT dated 09.09.2020. The members of the petitioner were informed by the said notices that if they were carrying on construction activities without obtaining EC, the same must be stopped in view of the said direction of NGT. It is the admitted case of the petitioner that its members have not obtained EC in terms of EIA Notification, 2006 before commencing the construction activities. In view of the specific direction of the NGT as contained in the order dated 09.09.2020, the Town Planner, Ranchi Municipal Corporation, Ranchi/Executive Officer, Municipal Council, Ramgarh had no option but to comply the same. If the petitioner or any of its members found itself aggrieved by the order of the NGT, it could have filed appeal against the said order for getting appropriate relief, however it did not choose to challenge the same. As such, challenge to the impugned notices on the ground of violation of the principles of natural justice, is not sustainable in the eye of law.
27. In the case of Punjab National Bank v. Manjeet Singh reported in (2006) 8 SCC 647, the Hon'ble Supreme Court has held as under:—
“17 [Ed. : Para 17 corrected vide letter dated 28-11-2006.]. In an industrial dispute referred by the Central Government which has an all-India implication, individual workmen cannot be made party to a reference. All of them are not expected to be heard. The unions representing them were impleaded as parties. They were heard. Not only were the said unions heard before the High Court, as noticed hereinbefore from a part of the judgment of the High Court, they had preferred appeals before this Court. Their contentions had been noticed by this Court. As the award was made in the presence of the unions, in our opinion, the contention of the respondents that the award was not binding on them cannot be accepted. The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice.”
28. In the case of Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise reported in (2015) 8 SCC 519, the Hon'ble Supreme Court has held thus:—
“38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason—perhaps because the evidence against the individual is thought to be utterly compelling—it is felt that a fair hearing “would make no difference”—meaning that a hearing would not change the ultimate conclusion reached by the decision-maker—then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [[1971] 1 WLR 1578 : (1971) 2 All ER 1278 (HL)], who said that : (WLR p. 1595 : All ER p. 1294)
“… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.”
Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [[1980] 1 WLR 582 : (1980) 2 All ER 368 (CA)] that : (WLR p. 593 : All ER p. 377)
“… no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing.”
In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual.
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.
29. It is a trite law that a writ cannot be issued on the ground of violation of principles of natural justice if only one conclusion is possible in a given situation. Every violation of a facet of natural justice may not lead to a conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”. The principles of natural justice cannot be applied in a straitjacket formula, rather it is quite flexible to be tested on case to case basis.
30. The learned Senior Counsel for the petitioner has also submitted that even though it is accepted that the projects in question were started without getting prior EC from SEIAA, Jharkhand or from the central authority in absence of SEIAA, Jharkhand and thereby the members of the petitioner violated the provisions of EIA Notification, 2006 as well as failed to apply for grant of EC under the violation category in view of Notification, 2017 and Notification 2018, this Court in exercise of the powers conferred under Article 226 of the Constitution of India, may issue necessary directions to the respondent no. 1 to open a window to deal with violation cases falling under Category “B” in the State of Jharkhand and to direct the state authorities to comply the directions of the NGT, Delhi including completion of Environment Impact Assessment as per EIA Notification, 2006, preparation of Environment Management Plan, calculating mitigation measures/Environmental Compensation in respect of all structures raised without obtaining prior EC. It has further been contended that this Court should take a balanced approach by applying the doctrine of sustainable development between ecology and development.
31. The learned Senior Counsel for the petitioner while putting reliance on the judgment of the Hon'ble Supreme Court in the case of Alembic Pharmaceuticals Limited v. Rohit Prajapati reported in 2020 SCC OnLine SC 347 has submitted that in the said case, Their Lordships applied the doctrine of proportionality and quashed the order of the NGT and directed the defaulters to pay compensation as a facet of preserving the environment in accordance with the precautionary principles. In the present case, the members of the petitioner are the similarly situated entities and they are ready and willing to comply any mitigating measures/to pay compensation and as such this Court may grant relief to the petitioner applying the doctrine of proportionality. It has further been submitted that this Court also, in the case of Hindustan Copper Limited v. Union of India [W.P.(C) No. 2364 of 2014] relying on the judgment of Alembic Pharmaceuticals (supra.), has held that violation cases must be considered on merits and proposal for EC must be processed regardless of alleged violation for which independent action can be initiated.
32. Before coming to the merit of the said submission of the learned Senior Counsel for the petitioner, relevant paragraphs of the order dated 09.09.2020 passed in O.A No. 45/2019/EZ by the National Green Tribunal, Principal Bench, New Delhi are reproduced hereinbelow:—
“8. Admittedly, the violation notification dated 14.03.2017 has ceased to have effect and it is admitted by the MoEF that at present no mechanism is in existence to deal with the situation as prevailing in the present case except that a draft EIA Notification, 2020 has been published under paragraph 22 in which procedure has been laid down to deal with the situation. The notification is yet to be published leaving a vaccum in the procedure to deal with such matters.
9. In the above circumstance the Tribunal is faced with the serious dilemma as regards the course of action to be taken. Mr. Sourabh Sharma, learned Counsel for the Applicant has suggested that Environmental Compensation ought to be recovered from those violating the EIA Notification and to direct institution of prosecution under section 19 of the Environmental protection Act, 1986 against those responsible for the violation. It is further submitted that in the meanwhile the ongoing construction of structures being undertaken without EC be directed to be stopped until it is obtained by the project proponents.
10. We have considered the various affidavits filed by the parties, considered the oral submissions of the learned Counsel for the parties and we are of the view that it would be necessary to take action to remedy the situation keeping in view that principle of sustainable development and the precautionary principle.
11. We, therefore, direct as follows:—
(i) The State Government through the Urban Development Department shall ensure that Environment Impact Assessment is undertaken in respect of all the structures which have been raised in the municipal areas expeditiously in accordance with the procedure laid down in the EIA Notification 2006. Accordingly, the Environmental Management Plan be prepared and mitigation measures proposed therein be implemented so as to be address the environmental issues arising on account of such constructions without EC.
(ii) Similar action shall be taken in respect of the structures falling within notified Nagarpalika area and Gram Panchayats, if there be any.
(iii) Environmental Compensation shall be assessed in respect of all the structures which have been raised without EC and shall be recovered from the appropriate authorities/persons/builders/project proponent (as the case may be) within a period of three months from hence. Environmental compensation in respect of those which have already been assessed shall also be recovered within the said period.
(iv) All ongoing constructions undertaken without obtaining prior EC shall be stopped forthwith until the environmental clearance is obtained.
(v) Action shall be initiated under section 19 of the Environmental (Protection) Act, 1986 by the State Pollution Control Board forthwith against those who are responsible for the violations.
(vi) Since the violations were being committed under the gaze of the concerned authorities, we direct initiation of disciplinary proceedings against the concerned officers, the Municipal Commissioners and the State Pollution Control Board at the earliest.
33. It would transpire from the aforesaid order passed by the NGT, Delhi that the learned Tribunal having taken into consideration the attending circumstance of the case as well as the suggestions of the counsel for the applicant, while applying the principle of sustainable development and the precautionary principle, has directed the Government of Jharkhand through Urban Development and Housing Department to ensure that EIA is undertaken for all the structures in accordance with the Notification, 2006 and therefore Environmental Management Plan be prepared and mitigation measures proposed therein be implemented so as to address the environmental issues arising on account of such construction done without taking prior EC and thereafter to assess the environmental compensation as well as to recover the same from the violators within a period of three months. In the meantime, the ongoing construction undertaken without taking prior EC has been ordered to be stopped until the EC is obtained. It has further been directed that an action under Section 19 of the Act, 1986 be initiated against those who are responsible for violation as also for initiating disciplinary proceedings against the concerned officers, municipal commissioners and the State Pollution Control Board at the earliest.
34. It is evident from the order of the NGT that the Government of Jharkhand has been directed to ensure that EIA is undertaken, management plan is prepared for the projects which were started in violation of EIA Notification, 2006, compensation is duly assessed and recovery of the same is made from the defaulter as well as in the meantime the ongoing construction has been directed to be stopped. Similar measures were suggested under the window opened vide notification dated 14.03.2017. Further, the State of Jharkhand and Jharkhand State Pollution Control Board have been directed to file their action taken reports within six months from the date of order. It thus appears that even after passing the final order dated 09.09.2020 in O.A. No. 45/2019/EZ, the NGT, Delhi is still monitoring the cases of violation of EIA Notification 2006 by the project proponents within the State of Jharkhand.
35. The National Green Tribunal Act, 2010 (in short “the Act, 2010”) has been enacted for the establishment of National Green Tribunal for effective and expeditious disposal of cases relating to environmental protection and conservation of forest and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.
36. Since the NGT is a specialized body to look into the environmental affairs which has passed the order to deal with the present issue applying the principle of sustainable development and the precautionary principle having been empowered in view of Section 22 of the Act, 2010, this Court after taking into consideration all the facts and circumstance, does not wish to add anything more on the subject.
37. In the case of Cicily Kallarackal v. Vehicle Factory . reported in (2012) 8 SCC 524, the Hon'ble Supreme Court has held as under:—
“4. Despite this, we cannot help but state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.
38. In the case of Union of India v. Shri Kant Sharma reported in (2015) 6 SCC 773, the question before the Hon'ble Supreme Court was as to whether the High Court could have entertained the writ petition against the final order or decision passed by the Armed Forces Tribunal under Section 30 of the Armed Forces Tribunal Act, 2007 (in short, “the Act, 2007”), bypassing statutory redressal mechanism. Their Lordships quashed the order of the Delhi High Court which had entertained the writ petition holding that if High Court entertains such writ petitions, it is likely to lead to anomalous situation. It was also held as under:
“43.………if any person aggrieved by the order of the tribunal, moves the High Court under Article 226 and the High Court entertains the petition and passes and judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution of India against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution of India against the order of the Armed Forces Tribunal and decides the matter, the person, who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act, 2007 against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act, 2007. Thereby, there is a chance of anomalous situation. ………”
39. Coming back to the present case, if the petitioner felt itself aggrieved with the order of the NGT, it could have preferred appeal to the Hon'ble Supreme Court even if it was not the party before the NGT. However, it neither availed the said remedy nor moved before the NGT for any modification/clarification of the order dated 09.09.2020. Curiously enough, the petitioner has also not approached to the State Government asking it to comply the order of the NGT in entirety, rather it rushed to this Court seeking direction to the respondent no. 1 to open a window to deal with the violation cases of its members which is not entertainable by this Court as opening a window for such cases is a policy decision of the government towards which the court should be slow to interfere. Moreover, the NGT has already framed the mechanisms to deal with the cases of the members of the petitioner and thus the said prayer of the petitioner cannot be entertained.
40. Undoubtedly, the power of judicial review under Article 226 of the Constitution of India is a basic feature of the constitution and no legislation can override or curtail its jurisdiction, however the Hon'ble Supreme Court in catena of decisions has held that the High Courts should give due regard to the legislative intent evidenced in various statutes and exercise jurisdiction consistent therewith. In the case of Alembic Pharmaceuticals (supra.) as relied upon by the learned Senior Counsel for the petitioner, the Hon'ble Supreme Court has exercised the power under Article 142 of the Constitution of India and has quashed the order of NGT revoking ECs of the industries involved in the said case by applying the principle of proportionality directing the violators to pay compensation amount of Rs. 10 crores each. The said order has been passed looking to the peculiar facts and circumstances of that case to do complete justice which does not constitute a binding precedent similar to the law laid down by the Hon'ble Supreme Court under Article 141 of the Constitution of India. Moreover, the petitioner has moved this Court bypassing the statutory remedy of appeal to the Hon'ble Supreme Court against the order of the NGT provided under Section 22 of the National Green Tribunal Act, 2010 (in short, “the NGT Act, 2010”).
41. It may be observed that whatever relief has been sought by the petitioner from this Court, has already been taken into consideration by the NGT and a detailed direction has been issued for remedying the situation and as such this Court does not feel it appropriate either to add anything to the said order or to modify the same under extraordinary writ jurisdiction particularly when neither of the parties has challenged the order of the NGT in appeal before the Hon'ble Supreme Court under Section 22 of the NGT Act, 2010. Even if it is assumed that the said exercise is time consuming, this Court does not intend to modify the order of the NGT merely on the said ground so as to provide a shortcut method of dealing with the violation cases of the members of the petitioner.
42. Before parting with the case, I would like to add that the Government of Jharkhand seems to have complied only the part order of the NGT and has stopped the ongoing constructions of the members of the petitioner. No averment has been made in the counter affidavit filed on behalf of the respondent nos. 2 and 3 as to what steps have been taken by them for complying the other part of the order i.e ensuring the EIA of the violation cases and preparation of Environmental Management Plan, assessment and recovery of compensation, disciplinary actions against the erring officers and penal action against the defaulters. This Court has also not been apprised of the fact as to whether any report has been submitted by the State Government before the NGT in compliance of the order dated 09.09.2020 as the period of six months have already elapsed. It seems that since the NGT, vide order dated 09.09.2020, has not issued any direction to SEIAA, Jharkhand, it has not entertained the EC applications of the members of the petitioner and has returned the same stating that these projects belong to the violation of Environment (Protection) Act, 1986 and EIA Notification, 2006 and there is no mechanism in existence to deal with the violation cases at present. The Government of Jharkhand should have complied the order of the NGT, Delhi in entirety and if it felt any difficulty in complying the entire order, it should have approached the NGT for clarification/modification of the said order. Nonetheless, it cannot sit idle by only complying the part order leading to a situation that the projects of the members of the petitioner for grant of EC have not been processed despite they being ready to comply all the conditions that may be imposed upon them for grant of EC.
43. In view of the aforesaid discussions, this Court is not inclined to grant relief to the petitioner as prayed in the present writ petition. The petitioner may however move before the NGT, Delhi for clarification/modification of the order dated 09.09.2020 passed in Original Application No. 45/2019/EZ or to take appropriate recourse against the said order as permissible under the law.
44. The writ petition is, accordingly, dismissed with aforesaid observation.