even in the case of projects which seek amendment for expansions, the project proponent shall submit the entire project for appraisal rather than seeking amendment by splitting the projects into different phases.
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BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Appeal No.54 of 2021(SZ)
&
I.A. No.207 of 2021 (SZ)
IN THE MATTER OF:
Thomas Lawrence
GV 79, Divisional Office Road,
Near PMG Junction,
Thiruvananthapuram
Kerala - 695033
...Appellant(s)
With
1. State Environment Impact Assessment Authority, Kerala
...
2. Union Of India
...
3. State Of Kerala
...
4. Dragonstone Realty Pvt. Ltd.
...
5. Winterfell Realty Pvt. Ltd.
...
The Hon’ble Supreme Court in Keystone Realtors Private Limited
Vs. Anil V. Tharthare and Ors. (2020) 2 SCC 66, held that even
in the case of projects which seek amendment for expansions, the
project proponent shall submit the entire project for appraisal rather
than seeking amendment by splitting the projects into different
phases. The Hon’ble Supreme Court observed that
“In a case where the text of the provisions requires
interpretation, this Court must adopt an interpretation which is
in consonance with the object and purpose of the legislation or
delegated legislation as a whole. The EIA Notification was
adopted with the intention of restricting new projects and the
expansion of new projects until their environmental impact
could be evaluated and understood. It could not be disputed
that as the size of the project increases, so does the magnitude
of the project’s environmental impact. This Court could not
adopt an interpretation of the EIA Notification which would
permit, incrementally or otherwise, project proponents to
increase the construction area of a project without any oversight
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from the Expert Appraisal Committee or the SEAC, as
applicable.
It was true that there may exist certain situations where the
expansion sought by a project proponent is truly marginal or the
environmental impact of such expansion was non-existent.
However, it was not for this Court to lay down a bright-line test
as to what constitutes a “marginal” increase and what
constitutes a material increase warranting a fresh Form 1 and
scrutiny by the Expert Appraisal Committee. If the government
in its wisdom were to prescribe that a one-time “marginal‟
increase in project size, within the threshold limit stipulated in
the Schedule, could be subject to a lower standard of scrutiny
without diluting the urgent need for environmental protection,
conceivably this Court may give effect to such a provision. This
would be subject to any challenge on the ground of their being a
violation of the precautionary principle.
However, as the EIA Notification currently stands, an expansion
within the limits prescribed by the Schedules would be subject
to the procedure set out in the notification. A core tenet
underlying the entire scheme of the EIA Notification was that
construction should not be executed until ample scientific
evidence had been compiled so as to understand the true
environmental impact of a project. By completing the
construction of the project, the appellant denied the third and
fourth respondents the ability to evaluate the environmental
impact and suggest methods to mitigate any environmental
damage.”
40. Further, the same view has been reiterated by this Tribunal in
Original Application No.149 of 2016 (SZ) [V. Ramasubbu Vs.
Union of India and Ors.] by Judgment dated 01.08.2022.
41. The contention of the SEIAA that they have examined the
environmental impact for 2,71,164.4 Sq.M. cannot be sustained,
since even before the EIA/EMP report was submitted to the SEIAA /
SEAC on 20.03.2020, the EC was sanctioned by MOEF & CC for part
of the project i.e. Phase - 3 for a built up area of 1,33,491 Sq.M. on
07.06.2019 itself, for which no EIA report was submitted to the
MOEF & CC since it was considered under 8(a) . Therefore, it is
evident that the project was split and Phase - 3 project has not
been subject to detailed EIA study holistically which is in violation of
the principles of the EIA Notification.
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42. We also do not find any merit in the argument of the SEIAA that the
EC was granted by them is for expansion since the question of
expansion of any project normally arises only when the initial
project or the main project or earlier phase of the project has been
completed and not contemplated initially when the project was
launched. By no stretch of imagination an application can be filed
for expansion when EC was not even granted for the earlier Phase.
In the instant case, the application for Main Project (1,33,491 Sq.M.
built up area) of Phase – 3 was filed on 21.04.2018 and the
expansion of the Mixed Land Use (Master Plan) project by M/s
Dragon Stone Realty Pvt. Ltd. at Technopark Phase-3 campus was
filed on 01.10-2018 / 28.12.2018 within a matter of six to eight
months and that too much before the EC was granted by MOEF &
CC on 07.6.2019. The application filed for expansion of the project
even before grant of EC for main project and commencement of the
project is violative of the provisions of the EIA Notification, 2006.
43. The project proponent certainly would have had plans for ultimate
built up area of 2,71,164.4 Sq.M. even at the time of their
application filed on 21.04.2018, which can be unequivocally inferred
by the fact that the project proponent has filed an application on
01.10.2018 (withdrawn and resubmitted on 28.12.2018) for the so
called expansion. Be that as it may, the Project Proponent ought to
have withdrawn their pending application with the MoEF&CC and
requested for consideration of the application resubmitted on
28.12.2018 or the SEIAA – Kerala should have sought withdrawal
of the pending proposal with the MoEF&CC and considered the
application holistically under Item 8 (b) and granted EC for the
entire built up area of 2,71,164.4 Sq.M. which could have averted
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splitting of the project and avoided grant of EC for the so called
main project of Phase – 3 for 1,33,491 Sq.M. by the MoEF&CC
without EIA study under Item 8 (a) and grant of EC for the so called
expansion for 1,37,673.4 Sq.M. under Item 8(b) by the SIEAA –
Kerala.
44. In view of the observations and discussions made above, we allow
the appeal and the following directions and orders are
issued:-
I. The impugned Environmental Clearance (EC)
granted by the SEIAA - Kerala is set aside, as
grant of EC by the MoEF&CC for Main Phase – 3
Project (1,33,491 Sq.M. built up area) and grant
of EC by the SEIAA – Kerala for Expansion of
Phase – 3 Project (1,37,673.4 Sq.M. built up
area) amounts to splitting of project and such
splitting is violative of the dictum of the Hon’ble
Supreme Court in Keystone Realtors Private
Limited Vs. Anil V. Tharthare and Ors.
(2020) 2 SCC 66.
II. A penalty of Rs. 15,00,00,000/-(Fifteen crores) is
imposed on the Project Proponent for their failure
to submit the Phase–3 project and for having
split the project as Main Project of Phase – 3 and
Expansion Project of Phase–3. The penalty levied
will be paid to the Integrated Regional Office,
MoEF&CC within 3 (Three) months, which will be
utilized for improvements of the wetlands in the
district.
III. The project proponent is directed not to
undertake any further work under the expansion
project of Phase-3 without obtaining
Environmental Clearance.
Page 28 of 30
IV. We direct the SEIAA – Kerala to examine the
proposal afresh and ensure that the PP conducts
a cumulative impact study for the entire Phase-3
with a built up area of 2,71,164.4 Sq.M. i.e. a
cumulative impact assessment for the entire
project and also identify the mitigation measures
that may have to be in place in Phase – 3 project
area where construction is already completed to
ensure that adverse environmental impacts, if
any, due to construction of main project of
Phase – 3 are remediated.
V. The Integrated Regional Office, MoEF&CC is
directed to file a compliance report regarding the
penalty collected within 4 (Four) months and
thereafter, once in 3 (Three) months to update
about progress of the works undertaken.
VI. The SEIAA, Kerala, which should have considered
the project comprehensively and having treated
the phase-3 as an expansion without application
of mind is also liable for its conduct. We
recommend to the MoEF&CC to take appropriate
action against the authorities who were
responsible in granting the Environmental
Clearance for the Phase-3 project.