EIA notification - authority of SEIAA - EC -B1 project

Kerala High Court
M.K.Salim vs State Of Kerala on 13 August, 2021
 IN THE HIGH COURT OF KERALA AT ERNAKULAM
 PRESENT
 THE HONOURABLE MR.JUSTICE S.V.BHATTI
 &
 THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
 FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
 WP(C) NO. 19580 OF 2019

21. Ext.P15 was the appendix attached to the application filed by the 7th respondent for grant of EC.
In column No.9 of Ext.P15, it is mentioned that the application is filed under clause 8(a) of the
Schedule to the EIA notification under the heading 'Building and Construction Projects'. However,
in the counter affidavit filed by the 3rd respondent, it was specifically stated that the project comes
under category 8(b) of the EIA notification and the project was approved as a B1 project as per the
rules. Since the writ petitioner has questioned the authority of SEIAA to consider the application for
EC submitted by the 7th respondent and grant of EC under item 8(b) of the Schedule to the EIA
notification, It is appropriate to consider the scheme and purport of the notification.
22. The EIA notification was enacted in exercise of the powers under Sections 3(1) and 3(2)(v) of the
Environment (Protection) Act, 1986 read with Rule 5(3)(d) of the Environment (Protection) Rules,
1986. Under the regime of EIA notification, all new projects or activities or expansion or
modernisation of existing projects or activities listed in the Schedule can be undertaken only after a
prior environmental clearance is obtained from the Central Government or the State Level
Environment Impact Assessment Authority.
23. The EIA notification provides for in Clause 2 that, prior EC from the regulatory authority
concerned is required for projects or activities that falls under two separate categories referred to as
category A and category B. Categorization is based on the spatial extent of potential impacts and
potential impacts on human health and natural and man-made resources as specified in Clause 4. As
per Clause 2 of EIA notification, before any construction work or land preparation is started on a
project or activity, a prior EC must be obtained. The aforesaid clearance has to be obtained from the
Ministry of Environment and Forest of Central Government for projects or activities falling under
category A and at the State level from the SEIAA for matters falling under category B. A reading of
the notification will make it clear that the SEIAA has to consider the applications for prior EC
through the procedure prescribed in Clause
M.K.Salim vs State Of Kerala on 13 August, 2021
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6. There is a further sub-category called Category B1 and B2. Projects that fall in Category B1 are
those projects which require an Environmental Impact Assessment study and consequent Report
while category B2 comprises projects that do not require Environmental Impact Assessment.
24. Under the scheme of EIA notification, an application for grant of environmental clearance has to
pass through four stages. These four stages are mentioned in clause 7 of the notification and they are
Stage I. Screening, Stage II. Scoping, Stage III. Public Consultation, and Stage IV. Appraisal.
25. 'Screening' is the first stage where the State Expert Appraisal Committee (SEAC) scrutinizes the
application and determines whether the project requires further environmental studies for
preparing environmental impact assessment (EIA). It is at this stage, categorization of the project as
B1 or B2 happens. Once the first stage is completed, the projects categorized as B1 goes to Stage II
called 'Scoping'. At the stage of Scoping, the SEAC determines the terms of reference (TOR). To
enable it to determine the TOR, it can even appoint a sub-committee to conduct a site visit. There is
an exclusion from Scoping for projects listed as Category B in respect of Construction or Township
or Commercial Complexes or Housing in item 8 of the Schedule. The next stage is referred to as the
'Public Consultation' where the concerns of the locals who are affected or who have a stake in the
environmental impact are ascertained. Though all category A and B projects require public
consultation, there is yet again an exclusion for projects listed as item 8(a) and item 8(b) to the
schedule apart from a few other projects. The fourth stage is the 'Appraisal' where the SEAC after
detailed scrutiny makes a recommendation to the SEIAA for granting or rejecting the EC sought for.
26. The schedule to the EIA notification lists the projects or activities that require prior
environmental clearance. Clause 8(b) of the EIA notification is relevant and is extracted as below:
SCHEDULE (See Paras 2 and 7) List of Projects or Activities Requiring Prior
Environmental Clearance Project or Activity Category with threshold limit Conditions
if any A B 8 Building/Construction projects/Area development projects and
Township 8(a) Building and > 20,000 sq.m. and < *(built-up area for covered
construction 1,50,000 sq.m. of built- construction; in the case of projects up area*
facilities open to the sky, it will be the activity area) 8(b) Townships and Covering an
area > 50 ** All projects under item area ha and or built-up area > 8(b) shall be
appraised as development 1,50,000 sq.m** Category B1 projects [The built up area
for the purpose of this notification is defined as the built up or covered area for all
floors put together including basement(s) and other service areas, which are
proposed in the building/construction projects.] Note:-
General Condition (GC):
[Any project or activity specified in Category 'B' will be treated as Category A, if
located in whole or in part within 10 km from the boundary of: (i) Protected Areas
notified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as
notified* by the Central Pollution Control Board from time to time, (iii) Notified
Eco-sensitive areas, (iv) inter-State boundaries and international boundaries.
M.K.Salim vs State Of Kerala on 13 August, 2021
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Provided that the requirement regarding distance of 10 km of the inter-State
boundaries can be reduced or completely done away with the agreement between the
respective States or UT's sharing the common boundary in case the activity does not
fall within 10 kilometres of the areas mentioned at item (i) (ii) and (iii) above.
27. It can be understood from the above discussion that the construction project challenged in this
litigation falls in category B and would require prior environmental clearance from SEIAA. The
argument of the writ petitioner that the building of the 7 th respondent having a built-up area of
more than 1.5 lakhs sq.m. must obtain the EC from the Ministry of Environment and Forest, is,
according to us, a misconception and a misreading of the EIA notification. On a perusal of the above
extracted tabular column and the above discussed provisions of EIA notification, it is obvious that a
project having a built-up area of more than 1.5 lakhs sq.m. can also fall under category B. If it is a
category B project, the SEIAA is the authority to grant the EC. It is a misreading of the notification
to contend that every construction project with a built-up area of more than 1.5 lakhs sq.m,
automatically falls within the jurisdiction of the MoEF and SEIAA loses its jurisdiction or authority.
In fact, the Supreme Court has interpreted the EIA notification to mean that Constructions above a
built-up area of 1.5 lakhs sq.m. by virtue of their sheer magnitude will qualify as a Township Project
by itself.
28. The decision of the Supreme Court in In Re: Construction of Park at Noida near Okhla Bird
Sanctuary v. Union of India and Others [(2011) 1 SCC 744] considers the distinction between clauses
8(a) and 8(b) of the EIA notification. For an easier appreciation, paragraphs 65 and 66 of the above
decision are extracted as below:
65. It is extremely difficult to accept the contentions that the categorisation under
Items 8(a) and 8(b) has no bearing on the nature and character of the project and is
based purely on the built-up area. A building and construction project is nothing but
addition of structures over the land. A township project is the development of a new
area for residential, commercial or industrial use. A township project is different both
quantitatively and qualitatively from a mere building and construction project.
Further, an area development project may be connected with the township
development project and maybe its first stage when grounds are cleared, roads and
pathways are laid out and provisions are made for drainage, sewage, electricity and
telephone lines and the whole range of other civic infrastructure. Or an area
development project may be completely independent of any township development
project as in case of creating an artificial lake, or an urban forest or setting up a
zoological or botanical park or a recreational, amusement or a theme park.
66. The illustration given by Mr.Bhushan may be correct to an extent. Constructions
with built-up area in excess of 1,50,000 would be huge by any standard and in that
case the project by virtue of sheer magnitude would qualify as township development
project. To that limited extent there may be a quantitative correlation between Items
8(a) and 8(b). But it must be realised that the converse of the illustration given by
Mr.Bhushan may not be true. For example, a project which is by its nature and
M.K.Salim vs State Of Kerala on 13 August, 2021
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character an area development project would not become a building and
construction project simply because it falls short of the threshold mark under Item
8(b) but comes within the area specified in Item 8(a). The essential difference
between Items 8(a) and 8(b) lies not only in the different magnitudes but in the
difference in the nature and character of the projects enumerated thereunder.
29. In a recent decision in Rajeev Suri v. Delhi Development Authority and Ors. (2021 SCC Online
SC 7) known as the Central Vista Project Case, the Supreme Court held that the basis of
categorisation of projects and activities under the EIA notification lies in the expanse of the built-up
area of the proposed project. The court held in paragraph 340 as follows:
The Schedule attached with the Notification incorporates a List of Projects or
Activities Requiring Prior Environmental Clearance. Item 8 in category B is divided
into two sub- categories - item 8(a) titled Building and Construction projects and
item 8(b) titled townships and Area Development projects. The distinction lies in
the expanse of built-up area of the proposed project.
30. In view of the above discussion, we are of the view that SEIAA was competent to consider the
application of the 7 th respondent for grant of EC for constructing the shopping mall having an
extent of more than 1.5 sq.m. of built-up space. We hold that SEIAA had the jurisdiction and
authority to issue Ext.P1