| Headnote |
Environment (Protection) Act, 1986 – Environment (Protection) Rules, 1986 – r.5(4) – Constitution of India – Articles 14, 21 – First EC notification provided that certain projects falling under categories set out in the Schedule thereto would require prior EC from the concerned Regulatory Authority – Second EC notification was issued adding Appendix-IX to the first EC notification, providing for exemption to specific categories of projects from the requirement of obtaining EC – Impugned notification substituted Appendix-IX which provided that prior EC will not be required inter alia for item 6 i.e. for extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc. – Challenge to – NGT held that the exemption u/item 6 should strike a balance and directed Ministry of Environment, Forest and Climate Change to revisit the impugned notification – Review there against also dismissed: Held: Before the issue of the second EC notification by which Appendix-IX was incorporated, the procedure of inviting objections to the draft notification was followed, and the objections were considered – There was no reason to dispense with this important requirement before publishing the impugned notification – Article 21 guarantees right to live in a pollution-free environment – Citizens have a fundamental duty to protect and improve the environment – Therefore, the participation of the citizens is very important and is taken care of by allowing them to raise objections to the proposed notification – Citizens being major stakeholders in environmental matters, their participation cannot be prevented by casually exercising the power under sub-rule (4) of r.5 – No document recording the satisfaction of the competent authority about the existence of public interest and the nature of the public interest was produced by the Ministry – The drastic decision to invoke sub-rule (4) of r.5 was made without any application of the mind – Hence, the decision-making process was vitiated – Impugned notification was issued two days after the nationwide lockdown was imposed due to the COVID-19 pandemic – At that time, the work of linear projects, such as roads, pipelines, etc., had come to a grinding halt – So, there was no tearing hurry to modify the EC notifications – Inclusion of item 6 of the substituted Appendix-IX illegal – Further, there was no specification about the quantum of ordinary earth which can be extracted on the basis of the exemption – “Linear projects” were not defined – Without the definition, it is difficult to imagine which projects will be termed linear projects – The term “linear projects” is very vague – The process to be adopted for excavation was also not set out – Thus, item 6 is a case of completely unguided and blanket exemption, which is per se, arbitrary and violative of Article 14 – There is no provision for setting up an authority which will decide whether a particular linear project is covered by item 6 – No steps taken to revisit item 6 of the impugned notification, as directed – Notwithstanding the specific directions issued in the impugned judgment, no safeguards were provided, such as laying down processes, the mode and the manner of excavation and quantum – Item 6 of the substituted Appendix- IX forming part of the impugned notification and item 6 of the amended impugned notification (issued during the pendency of the present appeals), struck down and quashed. [Paras 22-25, 28, 31, 32] Environment (Protection) Act, 1986 – s.3 – Power of Central Government to take measures to protect and improve environment – Environment (Protection) Rules, 1986 – r.5 – Prohibition and Restriction on the location of industries and the carrying on processes and operations in different areas: Held: s.3 of the EP Act must be read with r.5 of the EP Rules – r.5 has been enacted to give effect to clause (v) of sub-section (2) of s.3 of the EP Act, which empowers the Central Government to put restrictions on the areas in which industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards – Further, Sub-rule (4) of r.5 empowers the Central Government to dispense with the requirement of publication of notice under sub-rule (3) of r.5 when it appears to the Central Government that it is in the public interest to do so – Thus, sub-rule (4) of r.5 is an exception to sub-rule (3) – The exception can be invoked only on the grounds of public interest. [Paras 15, 19] |
