MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B. (Hons.) IV Year Semester- VII

Second Open Book Assessment

Course Code and Name: 7.4 ENVIRONMENTAL LAWS-II

Name of Student: RUDRANSH. UID: UG2017-88

ANSWER 1.

Q. 1 A (i) Whether X will succeed in his claim?

A. 1 A (i) No, X will not succeed in its claim. A similar scenario was observed when
Maharashtra Pollution Control Board in its 126 th meeting delegated the powers to issue direction
under Section 33A of the Water (prevention and Control of Pollution Act) 1974 to the regional
officers, the Assistant Commisioner and his subordinate in present case before us, of the Board
in urgent and emergent cases.

Q. 1 A (ii) What recourse the Board has, if an industry refuses to obey the orders of the Board?

A. 1 A (ii) If environmental clearance has been issued to the industry and after that the industry
continues polluting the environment and also effects the fundamental right to life under Article
21 of the Constitution, The High Court is powered under Article 21 to direct closure of industries
polluting the environment, if there were no other remedial measure to ensure that the industry
maintains the standard of emissions and effluents.(Sterlite Industries v. Union of India)

Q. 1 A (iii) Does provisions of Water (Prevention and Conrtrol of Pollution) Act, 1974 make S.
133 of CrPC redundant particularly in the matters relating to water pollution?

A. 1A (iii) No, the provisions of Water (Prevention and control of Pollution) Act, 1974 does not
make Section 133 of CrPc as redundant in regards to matters dealing with water pollution. In
Municipal Council, Ratlam v. Vardichan it was held that Section 133 of The CrPc comes into
action whenever there is a public nuisance. This power that has been granted to the Magistrate

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enables him to exercise, whenever he shall find that it his duty to intervene and to provide relief
to the victims of the nuisance. The power of the magistrate under Section 133 of CrPC is a
discretionary one, however discretion becomes a duty whenever the circumstances demand so.

In this case mentioned above the Supreme Court of India was faced with a situation , concerning
pollution of water which was alarming and threat to public at large. The Municipal Corporation
failed to provide public facilities because of which poor people used roadside as latrines.
Cesspools and stinks, dirtied the place beyond endurance, streets were discharged with harmful
liquid from the alcohols plant. Also, such kind of environment became breeding hub for
mosquitoes. The failure of Municipal Corporation to provide proper drainage and other facilities,
left magistrate with no option but to intervene using Section 133 of CrPC.

Q. B In several cases, Supreme Court and various High Courts of our country have permitted
road construction, thermal power plant projects and other development projects in ecologically
fragile coastal areas which is blatant violation of CRZ notifications released from time to time by
the government. With the help of relevant case laws, try to list out reasons that allow such
deviation from a well established environmental legislation.

A. B The Supreme Court in Goan Real Estate v. Union Of India, allowed the development
project although it was in violation of the CRZ notification. The court in this case referred to the
case of Indian Council For Enviro v. Union of India and resorted to its prospective
construction thus allowing the development project as it will not affect the completed or the on-
going construction being undertaken pursuant to the said Notification which was in violation of
CRZ notifications. The Supreme Court in former case held that in the latter case three judge
bench didn’t intend to give it prospective effect. It was also opined that while interpreting the
judgment of such nature opinion of governmental authority shall also be considered, however it
may not be binding. In present case all the authorities opined that judgment of the court in Indian
Council is to be applied prospectively.

Also in a recent judicial pronouncement of Mumbai Coastal Road Project Supreme Court held
that before prohibiting such kind of project the court has to consider the factor of balance of
convenience, prima facie case and irreparable damage/injury. The court considered the

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contention of the project developers that they will incur huge costs if such projects are to be
stayed.

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ANSWER 4.

Q. (i) Discuss the importance of public hearing/consultation while granting environment

clearance in India. Also discuss the position of public hearing under Draft EIA notification,
2020?

A. (i) Public hearing/ consultation in India are of indispensible nature and environmental
clearance cannot be granted failing to do the same. In a case before the Supreme Court of India
Electrotherm Ltd. v. Patel Vipul Kumar Ramji Bhai, the court was of the opinion that an
exemption from conducting public consultation is not to be permitted for an applicant. Public
consultation serves as a platform for general public to seek redressal of public grievances in
regard to the clearance that is sought.

The court in this case recognized that public/consultation is a mandatory stage that has to be
passed before granting of an environmental clearance. To ignore this stage of public
consultation/hearing will result in a huge impact on the communities living around such sites.
However, in some cases where to meet ends of justice, and where the facts so demand, clearance
can be given in advance and public consultation shall be conducted post clearance.

The draft EIA notification 2020 has endangered the basic tenets of public participation. The
public consultation period earlier comprised of 30 days, but now it has been reduced to 20 days.
Reduction of such type will exclude some groups of people from consultation. This reduction is
also in contravention of a case decided by Gujarat High Court in Centre for Social Justice v.
Union of India wherein the court was of the view that minimum of 30 days for public hearing is
required.

The Notifiaction also provided exemption to projects with “strategic considerations as

determined by the government” from the stricter ambit of EIA and public hearing. This grants
the government an absolute authority to categorise projects as strategic and so it can eliminate
the stage of public hearing from the clearance granting process. In addition to this, the draft
notification also exempts massive construction projects falling under the category B2 from need
to conduct public consultations before seeking environmental clearance. Such changes in public
participation as laid by EIA notification 2020, is in violation of Article 12 of Paris Agreement,
2016 and also in violation of Principle 10 of UN Conference on Environment and Development

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at Rio which deal with public participation, and as to both of these agreements India is a
signatory.

Q. (ii) Suppose the allegations put forward by petitioner are proved before the Tribunal, what
action now the Tribunal can take against the respondent in such a case?

A. (ii) The tribunal, if finds that public consultation/hearing is not up to the mark and is faulty
then it has the power to quash the order of Environmental Clearance and also it has the power to
suspend the clearance that has been granted till the time loopholes in public consultation/ hearing
are fixed. The facts and the circumstances of each case has to examined differently and then the
decision of whether to quash, or suspend the Environmental Clearance is to be taken In a case
before the National Green Tribunal, Jeet singh Kanwar v. Moef and Others , where
environmental clearance order of the government was quashed as it was found by the court that
Expert Appraisal Committee(EAC) of Ministry of Environment and Forest(MoEF) overlooked
certain issues raised in public hearing which were of significant nature. The EAC did not conduct
“detailed scrutiny” and also failed to give sufficient reasons as to how the objections raised by
the members of public were addressed by the Project Proponent.

If it is clear to the tribunal that prejudice was caused while conducting the public hearing i.e.
where there is gross violation of procedures and public hearing seems frivolous and a mockery it
is the duty of the tribunal to declare the same as invalid. This reasoning was resorted to by the
court in case of Adivasi Majdoor Kisan Ekta v. MoEF, where it was found that conducting of
public hearing was not proper, also, the suggestion made by the EAC to conduct fresh public
hearing was not heeded to, and hence the public hearing was declared invalid and the
Environmental Clearance granted to the project proponent was quashed.

In Samta and Another v. MoEF , National Green Tribunal, suspended the clearance that was
granted to the project proponents, and asked the EAC to make a detailed scrutiny of the issues
raised at the time of public hearing as it is provided in the Notification and what was the
response and clarification that was given by Project Proponent to the issues raised. The EAC
was found to have failed in analysing the reason given by the Project Proponent for negating the
objection created by public in a public hearing and hence was ordered to reconsider while the
clearance stood suspended.

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ANSWER 5.

Q. (i) Determine the responsibility of CBWTFs in case of inappropriate waste segregation by the
health care facilities. Can this be a valid excuse for justifying re-segregation under BMW
management rules, 2016?

A. (i) Rule 8 (2) BMWM Rules, 2016 provide that segregation of bio-medical waste is the
responsibility of Healthcare Facility. So when CBWTF had the knowledge that the Healthcare
Facility was failing to segregate the bio-medical waste, it was the duty of CBWTF, under the rule
5(d) of BMWM Rules, 2016, to report the situation to the prescribed authority. Failure to do so,
on part of CBWTF will shift the burden of responsibilities towards them. In a case before the
National Green Tribunal, Sales Promoters Through its Proprieties v. Central Pollution Control
Boards, the court encountered a similar set of facts and held that there was violation of BMWM
Rules.

There cannot be a valid excuse for justifying the re-segregation under BMWM Rules, 2016.
These rules also nowhere provide that in case Health Facility failed to segregate, same can be
done by treatment facility. Further, the color-coded bio medical waste containing segregated bio-
medical waste once sealed by the Healthcare Facility should not be opened by any common Bio
Medical Waste Treatment Facility, as it poses health risk to its workers and also it has the
potential to cause a serious outbreak of an epidemic. Hence, the act of CBWTF was exposing its
workers and the public at large to fatal consequences and cannot be justified.

Q. (ii) Whether hiring of a third party for transmission of data to the CPCB server absolves X
from its own duty under the rules, 2016?

A. (ii) No, the hiring of a third party for transmission of data to the CPCB server does not
absolve X from its own duties. Under Schedule II rule I. Note (i) of the BMWM Rules, 2016
provide that the facility shall install Continuous Emission Monitoring System for the parameters
as stipulated by SPCBs/PCCs and transmit data in real time to servers at State Pollution Control
Boards or Pollution Control Committees and Central Pollution Control Board and hence it
imposes a duty on the facility to ensure that CEMS data is transmitted to CPCB server.

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Also, in the present scenario the vendor was in agreement with the CBWTF and so its contention
that it is fault of the vendor cannot be used to nullify the duty which is present on part of
CBWTF. Rules impose duty on CBWTFs operator to ensure that OCEMS data is transmitted to
CPCB server. The court resorted to same reasoning in Sales Promoters Through its Proprieties
v. Central Pollution Control Boards, and held the operators of the facility responsible for the
non-transmission of data to the CPCB server. Hence, the CBWTF was in contravention of rule
given in Schedule II and therefore, the CBWTF will be held responsible for failure to transmit
data to CPCB server.

Q. (iii) Is renewal of lease a right? Cite relevant case laws to answer this question.

A. (iii) No, the renewal of lease is not a right. An instrument of lease may contain a provision,
that after the expiry of the term of the lease, it is to be renewed. However, insertion of such a
provision in a lease instrument may not in itself renew the term of the lease but it entitles the
lessee to obtain a new lease in his favour after the expiry of the original term. In Hindustan
Petroleum Corporation Ltd. v. Dolly das it was held that provision for renewal is not to be
treated as prescribing the period of the lease and it only entitles a lessee to obtain a fresh lease.
Renewal of lease is called so because it presupposes the existence of a prior lease and it shall
contain a clause for renewal. If there is no existence of such clause then, then renewal is ‘fresh
grant of lease by the lessor. (Delhi development Authority v. Durga Chand Kaushik)

In a case where original lease deed consists a clause for renewal , but the lessor fails to execute
and /or get register the fresh grant of the lease for further lease term ignoring the requests of the
lessee, the party so affected by non-performance may file a suit for specific performance of the
renewal clause, provided that lessee is not guilty of having violated or breach any material terms
of the original lease deed. It is also pertinent to note the case . In Ambika Quarry Works v. State
of Gujarat there was mention of prior approval of government before renewal in the deed and
hence such condition was mandatory for the renewal of lease deed.

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