Fresh Environmental Clearance Must For Expansion Beyond Limits Approved By Prior EC : SC [Read Judgment]

The Supreme Court has held that a fresh Environmental Clearance is necessary for the expansion of a project beyond the limits approved by the prior EC. The Court added that such fresh EC is mandatory, even if the expanded project is within the upper limits prescribed under the Environmental Impact Assessment notification 2006.In this case (Keystone Realtors Pvt. Ltd. v. Shri Anil V Tharthare & Ors), the project proponent had obtained clearance for the expansion of the project by merely 'amending' the prior EC which was granted by the State Environment Impact Assessment Authority. Holding that such expansion needed a fresh EC, a division bench comprising Justices D Y Chandrachud and Ajay Rastogi held that "even after obtaining an EC if the project is expanded beyond the limits for which the prior EC was obtained, a fresh application would need to be made even if the expansion is within upper the limit prescribed in the Schedule". The bench added that the expansion of a property in any form necessarily puts a strain on the local environment and infrastructure and such activities need to be evaluated in a holistic manner.The Court said that if such an interpretation was not given, a project proponent may incrementally keep increasing the size of the project area over time resulting in a significant increase in the project size without an assessment of the environmental impact resulting from the expansion. Such an outcome would defeat the entire scheme of the EIA Notification, added the Court.The appellant filed the Civil Appeal against the order dated 11 February 2019 of the Principal Bench of the National Green Tribunal (NGT). In its order, the NGT held that the increase in the total construction area of the appellant's project was "expansion" under a notification (S.O. 1533) dated 14 September 2006 of the Ministry of Environment and Forests. The NGT on examination, found that the appellant had undertaken the "expansion", without complying with the regulatory procedure as laid out in para 2 of the Environmental Impact Assessment (EIA) notification. The tribunal had directed the appellant to deposit an amount of Rupees 1 crore with the Central Pollution Control Board. The tribunal on noting that the construction at the project site has been completed, appointed a five member expert committee to study the impact of the appellant's expanded project and to suggest remedial measures.Brief facts of the case The appellant was the project proponent of a residential redevelopment in Mumbai. On receiving a Commencement Certificate to carry out the development and erect a building, the appellant began construction. The total area was 8,720.32 sq.m., when the construction commenced and it was further increased to 32,395.17 sq.m. Under the EIA notification, an Environmental Clearance, was necessary if the total construction area exceeded 20,000 sq.m. Hence the appellant applied for an Environmental Clearance (EC) under the EIA notification. The same was granted the EIA authority on the recommendation of the State Expert Appraisal Committee (SEAC) on 2 May 2013.On 24 September 2013, the appellant informed the Environment Department of the Govt. of Maharashtra, on further increasing the construction area by 8,8085.71 sq.m., as a result of which the total construction area of the project would stand enhanced to 40,480.88 sq.m. Instead of applying for a fresh EC, the appellant sought an 'amendment' to the EC dated 2 May 2013 to reflect the increase in the total construction area. The third respondent, i.e., State Level Environment Impact Assessment Authority for Maharashtra, granted an 'amendment' to the EC dated 2 May 2013 on the ground that there was only a "marginal increase in the built up and construction area". The first respondent, who is a resident of Mumbai challenged the grant of the amended EC dated 13 March 2014 before the Pune bench of the NGT. The Supreme court, while examining the relevant clauses of EIA notification said that, the notification seeks to ensure the protection and preservation of the environment during the execution of new projects and the expansion or modernisation of existing projects. It imposes restrictions on the execution of new projects and on the expansion of existing projects, until their environmental impact has been assessed and approved by the grant of an EC. Emphasising the Para 2 and para 7 (ii) of the EIA notification which reads:"2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management...

Fresh Environmental Clearance Must For Expansion Beyond Limits Approved By Prior EC : SC [Read Judgment]

Arabhi Anandan

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