“Entire exercise smacks of arbitrariness”, SC quashes Environmental Clearance to Tata Housing Project near Sukhna Wildlife Sanctuary

“Entire exercise smacks of arbitrariness”, SC quashes Environmental Clearance to Tata Housing Project near Sukhna Wildlife Sanctuary

Murali Krishnan

The Supreme Court today upheld a judgment of Delhi High court quashing the Environmental Clearance granted to a housing project near Sukhna Wildlife Sanctuary proposed to be developed by Tata Housing Development Company Limited (Tata HDCL).

The judgment was delivered by a Bench of Justices Arun Mishra, MR Shah and BR Gavai.

The appellant Tata Housing had questioned the judgment of Delhi High Court concerning the housing project. The High Court set aside the Environmental Clearance (EC) dated September 17, 2013, granted by the State Level Environment Impact Assessment Authority (SEIAA) for development of the project on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary. Hence, it had held that the EC was not in conformity with the Notification dated September14, 2006 of Ministry of Environment and Forest (MoEF).

The Tata HDCL proposed to develop a project, namely, “CAMELOT” in the revenue estate of village­ Kansal, Tehsil ­Kharar, District­ Mohali, State of Punjab.

The total project area was 52.66 acres, out of which 41.54 acres was to be developed for group housing built­up area of 4,63,144.54 sqm. The estimated population of the project area was about 9788. The proposed maximum height of the building was to be 92.65 meters.

Environmental clearance was required in terms of the Notification dated September 14, 2006 issued by MoEF, which mandates prior to environmental clearance from the Central Government or by the SEIAA. The Notification has a statutory force having been issued under Section 3(1) and 3(2)(v) of the Environmental (Protection) Act, 1986 (EP Act) read with Rule 5(3)(d) of the Environment (Protection) Rules, 1996 (EP Rules).

Tata HDCL applied for environmental clearance from SEIAA, Punjab. The application was forwarded to the State Expert Appraisal Committee (SEAC). In the meeting dated June 06, 2009, the SEAC awarded “gold grading” to the proposed project and recommended to forward the project to SEIAA for grant of environmental clearance. The MoEF recommended the grant of environmental clearance in its meeting held on November 9 and 10, 2010.

However, MoEF had called a report from the Northern Regional Office, Chandigarh regarding the proposed project.  A team of officers inspected the project site and submitted a report stating that the distance of the project from Sukhna Wildlife Sanctuary was found to be 123 meters on the Northern side and 183 meters on the Eastern side. Besides, the report stated that the project falls in the catchment area of Sukhna Lake as per the Survey of India Map.

The SEIAA sought clarification from MoEF as to whether it is competent to consider the application since the Sukhna Wildlife Sanctuary is located at a distance of 123 meters from the project site as per the report of Northern Regional Office of MoEF.

Meanwhile, various petitions came to be filed on the subject both in Punjab & Haryana High court and Supreme Court. Eventually, the matters were transferred to the Delhi High Court for final decision. The Delhi High Court ruled against Tata Housing leading to the current appeal in Supreme Court.

The Supreme Court noted that the Notification makes it clear that no new commercial construction of any kind shall be permitted within 0.5 km. from the boundary of protected area or up to the boundary of the eco-­sensitive zone. Construction of all types of new buildings and houses up to a distance of 0.5 km. in the zone shall be prohibited from 0.5 km. to 1.2   km, construction of low density (ground coverage less than half of the plot size) and low rise building about 15 feet can be permitted.

The Court proceeded to make observations regarding the impact of environmental degradation which is threatening the earth and human civilisation.

“The most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The climate change is impacting wildlife by disrupting the timing of natural events. With warmer temperatures, flowering plants are blooming earlier in the year and migratory birds are returning from their wintering grounds earlier in the spring.”

The Court also adverted to the jurisprudence evolved by Indian courts in the field of environmental protection. In the instant case, the Court held that the project in question cannot be allowed to come up in the area in question considering the fact that the distance of the project from the wildlife sanctuary is 123 meters from the Northern side and 183 meters from the Eastern side.

The Court also noted that the State of Punjab failed to act as per the Public Trust Doctrine while also referring to the fact the 95 MLAs were to be recipients of the flats.

“The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco­sensitive zone around a Wildlife and has permitted setting up of high­rise buildings up to 92 meters in the area in question, which is not at all permissible.”

Thus, the Court held that the project cannot be permitted to come up within such short distance from the wildlife sanctuary.

“Resultantly, hold that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Moreso, in view of the Notification issued with respect to the Sukhna   wildlife sanctuary towards the side of Chandigarh Union Territory and also considering the fact that   proposal made by the Punjab Government, confining the Buffer Zone to 100 meters, has rightly not been accepted by MoEF.”

It, therefore, quashed the clearance granted to the project while mincing no words against the arbitrariness of the government authorities.

“The entire exercise of obtaining clearance relating to the project is quashed.  We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly. The entire exercise smacks of arbitrariness on the part of Government including functionaries.”

[Read Judgment]

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