National Green Tribunal(NGT), Western Zone Bench, Pune struck down the ‘Environment Clearance’ procedure adopted during 1998-2003 by the Ministry of Environment, Forest & Climate Change, Government of India for granting the “Ex-Post-Facto Environmental Clearances” to the 23+ defaulting industries of Gujarat and others across the country.
· NGT also declared “Ex-Post-Facto Environmental Clearances(ECs)” as illegal in Public Interest Litigation filed in 2003 by Rohit Prajapati of Paryavaran Suraksha Samiti & Ziya Pathan of PUCL.
· NGT order will lead to closing down of many known industries of Gujarat and across country that started production without prior environment clearance.
· “Ex-Post-Facto Environmental Clearances” means Environment Clearance to the Industries granted after production work started in these industries.
As per circular dated 13 March 2003 of then MoEF there were 213 such defaulting industries. We still have to find out the names and number of such defaulting industries that operated as on 5 November 1998 while the MoEF of the day claimed that they learnt about the defaulting industries starting their production without prior ‘Environment Clearance’.
Originally, the PIL Special Civil Application No.17417 of 2003 was before the Hon’ble High Court of Gujarat. The Hon’ble Division Bench of Gujarat High Court transferred the Special Civil Application No. 17417 of 2003 to the National Green Tribunal, Western Zone Bench, Pune by order dated 21 April 2015. The NGT registered this case as Application No. 66 (THC) of 2015 (WZ) under Section 14(1) and 18(1) of the National Green Tribunal Act, 2010.
The (1) United Phosphorous Ltd, Unit No. II, Plot No. 3405, 3406, GIDC, Ankleshwar, Dist. Bharuch, (2) Unique Chemicals, Plot No. 5, Phase IV, GIDC, Panoli, Dist: Bharuch, (3) Darshak Pvt. Ltd. Village : Panelav, Tal: Halol, Dist: Panchmahal (Now known As Alembic Chemical Ltd.), (4) Nirayu Pvt. Ltd. Village : Panelav, Tal: Halol, Dist: Panchmahal, (Now known as Alembic Chemical Ltd.) and such 23 companies of Gujarat who have actually started their project and production after 1994, without the requirement of submitting E.I.A., facing public hearing and thereafter, going for the environment clearance. After having worked with their project without necessary clearance, they came up with E.I.A. and public hearing in 2002. During the environment public hearing on the E.I.A. of the said companies, the question was raised as to how the companies could start their operations without necessary clearance and what is the purpose of post-facto hearing. Its legality and validity had been challenged.
On the basis of above facts and legal background, the following issues were raised before the National Green Tribunal.
Whether the public hearing on E.I.A. of the proposed new project for clearance from MoEF could be conducted after starting the industry without necessary clearance?
Whether such an industry, which admittedly operates without any clearance, could be permitted to operate as per the environmental laws and specifically Environment Protection Act and rules 1986?
What action should be taken against such erring industries by the Central & State Governments and the GPCB as per law?
An industry, which commences its work production without the clearance, is existing unlawfully and invades the ecology contrary to the law by causing destruction/damage to the same including the damage to the people’s health. Hence, should they be compelled to compensate the people of the area? Should they be forced to restore ecological balance at their own cost?
An industry which openly comes unprepared to face the public hearing on E.I.A. fails to answer the relevant questions and openly admitted to have started the working without the clearance be put to heavy costs payable to the public and Voluntary Organisation whose time and efforts are wasted by such industries?
Should the GPCB (Gujarat Pollution Control Board) and MoEF & CC (Ministry of Environment and Forests and Climate Change) be directed to check and screen the E.I.A. themselves with the help of experts before placing the same for public hearing?
Should the GPCB and MoEF & CC be directed to take necessary action against those officials who have failed in checking the commencement of the industries without necessary clearance?
Should the member of public, N.G.Os be permitted to be involved from the stage one of preparations of E.I.A. by the industry to ensure its fairness and trust worthiness?
The NGT (HON’BLE SHRI JUSTICE V. R. KINGAONKAR & HON’BLE DR. AJAY A. DESHPANDE) clearly stated in their order dated 8 January 2016 that “4. […] The Circular dated 14.5.2002, issued by the MoEF, extends time limit for obtaining ‘ex-post facto’ ECs, so that defaulting units could avail such last and final opportunity. The Circular does not show by which provisions, the power is provided in the Environment (Protection) Act, 1986, to allow ‘ex-post facto’ EC. This Circular itself is void, ab-initio and ought to be struck down. Therefore, we have no hesitation in holding that ‘ex-post facto’ process of obtaining ECs by the Respondent Nos. 6 to 9, was just a farce, stage managed, wrong and impermissible under the Law and suffered from illegality, which is incurable in any manner.”
The NGT further in its order gave clear direction that “7. In the result, we are of the opinion that the Application must succeed on all counts. We, therefore, direct as follows:
i) The Circular dated 14.5.2002 is illegal, void and inoperative and the MoEF, shall immediately clarify legal position to the concern Authorities, within one month hereafter and shall not take any further action on basis of aforementioned Circular.
ii) The Respondent Nos. 1 to 5, shall not grant any consent/permission to run any industrial activity, covered under the Environment (Protection) Act, 1986, which requires permission as per the EIA Notification dated 14th September, 2006, without going through the required steps like, screening, scoping, public hearing and decision.
iii) The Respondent Nos. 1 to 5, shall revoke ECs dated- 17.7.2003, dated 23.12.2002 and dated 14.5.2003, respectively issued to the Respondent Nos. 6 to 9, within period of one month hereafter.
iv) The Respondent Nos. 6 to 9 shall close-down industrial activities, which are being operated without valid EC and consent to operate immediately, four (4) weeks, inasmuch as they are being operated without any legal permission/consent and concept of ‘ex-post facto’ sanction or ‘ex-post facto’ hearing.
v) The Respondent Nos. 6 to 9 shall pay Rs. 10 Lakhs each for causing environmental degradation, which amount shall be deposited, as provided in Rule 37 of the NGT (Practices & Procedure) Rules, 2011.
vi) The Respondent Nos. 6 to 9 shall pay Rs.10,000/- each to the Applicants as litigation costs.
vii) The amount deposited by the Respondent Nos. 6 to 9, shall be utilized for restoration of environment and if any reminder available for plantation purpose in and around the Ankleshwar Industrial area.
viii) In case, the Respondent Nos. 6 to 9 will not deposit amount, as stated above, the concern Collector of the District, shall take steps to confiscate the industries and goods, stock and barrel and may sale the same for recovery of amount, as if it is dues under the Gujarat Land Revenue Code.”
This closure order will be immediately operative for the following:
(1) United Phosphorous Ltd, Unit No. II, Plot No. 3405, 3406, GIDC, Ankleshwar, Dist. Bharuch, (2) Unique Chemicals, Plot No. 5, Phase IV, GIDC, Panoli, Dist: Bharuch, (3) Darshak Pvt. Ltd. Village : Panelav, Tal: Halol, Dist: Panchmahal (Now known as Alembic Chemical Ltd.), (4) Nirayu Pvt. Ltd. Village : Panelav, Tal: Halol, Dist: Panchmahal, (Now known as Alembic Chemical Ltd.)
We will be writing letter to MoEF & CC that now the “Circular” which talks about the “Ex-Post-Facto Environmental Clearances” is struck down and declared by the NGT as ab-initio-void, MoEF & CC should cancel the “Environment Clarence” of all the project and companies across India which were granted Environment Clarence” under this circular and MoEF & CC should close down all such projects and companies. MoEF & CC should also assess the environmental damage done by all such projects and companies and recover the total cost for remedial measures.
Rohit Prajapati Krishnakant Swati Desai Trupti Shah
PARYAVARAN SURAKSHA SAMITI (PSS) (0265-2320399)
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