IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Tuesday, the 26th day of July 2022 / 4th Sravana, 1944
CONTEMPT CASE(C) NO. 1063 OF 2022(S) IN WP(C) 3097/2016
PETITIONER/PETITIONER:
ONE EARTH ONE LIFE,REPRESENTED BY ITS LEGAL CELL DIRECTOR,
SRI.TONY THOMAS.K,AGED 64 YEARS,IRUMBAKACHOLA, MANNARKAD P.O,
PALAKKAD DISTRICT.
BY SRI.RANJITH THAMPAN (SENIOR ADVOCATE) ALONG WITH ADVS. M/S.
V.HARISH,RAJAN VISHNURAJ
RESPONDENT/1ST RESPONDENT:
RAMESHWAR P.GUPTA*,THE SECRETARY, (CORRECTED)
MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE,
INDIRA PARYAVARAN BHAVAN, JORBAGH ROAD, NEW DELHI- 110003
*NAME OF THE RESPONDENT IS CORRECTED AS "LEENA NANDAN"
VIDE ORDER DTD. 28/06/2022 IN IA.1/2022 IN COC.1063/2022.
BY SRI.MANU S. ASSISTANT SOLICITOR GENERAL OF INDIA,
SRI.S.BIJU,CENTRAL GOVERNMENT COUNSEL
This Contempt of court case (civil) having come up for orders on
26.07.2022, the court on the same day passed the following:
P.T.O.
S. MANIKUMAR, CJ & SHAJI P. CHALY, J.
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W.P.(C) No. 3097 of 2016 &
Cont. Case © No. 1063 of 2022
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Dated this the 26th day of July, 2022.
ORDER
S. MANIKUMAR,CJ.
On 15.06.2022, we passed the following order:
"By order dated 17th September 2020 in W.P. (C)No.3097 of 2016, we directed thus:
"We have evaluated the rival submissions and is of the opinion that the subject matter requires serious consideration, since we find that there is some force prima facie in the contentions advanced by the petitioner. Therefore, the balance of convenience requires that undue advantage is not taken by the builders by carrying out constructions, in the guise of that part of Ext.P1 notification, which is seriously under challenge being violative of the Notification of the Government of India and the Rules, 1986. Therefore, we are of the opinion that in order to protect the environmental issues, an interim order is granted effective from today onwards. Therefore, there will be a stay of Ext.P1 notification to the extent of modification by the definition of built up area provided to clause 8(a) by way of Note 1 to the effect that the projects or activities shall not include industrial shed, school, college, hostel for Educational Institutions, but such buildings shall ensure environmental management, solid and liquid waste management, rain water harvesting and may use recycled materials, such as fly ash, bricks, for a period of two months."
2. Alleging that Mr.Rameshwar P. Gupta, Secretary, Ministry of Environment, Forests and Climate Change, New Delhi (respondent inCont. Case (C) No.1063 of 2022) has violated the interim orders dated 17.9.2020 and 13.6.2022 passed by this court and issued Ext.P14 office memorandum dated 19th May 2022, Cont. Case (C) No.1063 of 2022 has been filed. That apart, petitioner has also filed I.A.No.2/2022 in W.P. (C)No.3097 of 2016 seeking for stay of Ext.P14 office W.P.(C) No. 3097/2016 & :2: C.O.(C) No. 1063/2022 memorandum.
3. Attention of this court is drawn to a letter dated 29.3.2022 issued by the Director, Government of India, Ministry of Environment, Forest and Climate Change to the Director, M/S Institute of Human Resources Development, Thiruvananthapuram, by which exemption has been granted in respect of several education institutions.
4. It is also submitted that the abovesaid letter has been issued knowing fully well the interim order passed by this court in W.P. (C)No.3097 of 2016 dated 17.9.2020 and 23.11.2020 respectively, against the amendment to the EIA Notification, 2006 dated 22.12.2014 (which provides exemption to educational institutions having builtup area > 20,000 Sqm. and less than 1,50,000 Sqm.from the requirement of prior EC). For brevity clause 4(iv) of the letter dated 29.3.2022 is extracted below:
"4. iv. Application has been submitted for Environmental Clearance based on the order issued by High Court of Kerala at Ernakulam (on writ petition W.P.(C)No.3097 of 2016 (S) dated 17.9.2020 and 23.11.2020, staying the amendment to the EIA Notification, 2006 dated 22.12.2014 (which provides exemption to educational institutions having built-up area > 20,000 sqm. and less than 1,50,000 sqm. From the requirement of prior EC."
5. On instructions, Mr.S.Biju, learned Central Government Counsel submitted that the alleged contemnor Mr.Rameshwar P. Gupta, Secretary, Ministry of Environment, Forests and Climate Change, New Delhi has already retired from service. Learned W.P.(C) No. 3097/2016 & :3: C.O.(C) No. 1063/2022 Central Government Counsel admitted that there occurred some communication gap in respect of the earlier interim orders passed by this court.
6. Sri.Ranjith Thampan, learned Senior Counsel appearing for the writ petitioner submitted steps would be taken to implead the necessary parties.
7. In such a view of the matter, we are not inclined to issue any direction in the contempt petition at this stage. However, respondents in the writ petition are directed to file their response to I.A.No.2 of 2022 seeking for stay of Ext.P14 office memorandum dated 19th May 2022.
8. Mr.S.Biju, learned Central Government Counsel seeks time to get instructions in the matter.
Post on 28.6.2022."
2. On the basis of the statement dated 24.07.2022 filed for and on behalf of respondent No.1 as Bench Mark, Mr. S. Biju, learned Central Government Counsel, submitted that taking note of the order dated 17.09.2020 passed by this Court in W.P.(C) No3097 of 2016, office memorandum dated 28 th June, 2022 has been issued incorporating certain clarifications. Relevant paragraphs of the statement dated 24.07.2022 read thus:
4. It is further submitted that, on 29/03/2022, the Infrastructure sector of the Impact Assessment Division of the W.P.(C) No. 3097/2016 & :4: C.O.(C) No. 1063/2022 Ministry of Environment, Forests and Climate Change, hereinafter referred to as the 'Ministry', granted Environment Clearance for the "Integrated Educational Hub Project" of M/s Institute of Human Resource Development, Kerala, wherein the Ministry has mentioned that the validity of the EC is subject to the Interim Order dated 23/11/2020 imposed by this Hon'ble Court in WP(C) 3097/2016. Thus the Ministry never had any intentions to contravene the Order of this Hon'ble Court. This itself is evident from the Environment Clearance dated 29/03/2022 produced as Ext. P15 along with the IA.
5. It s submitted that the Ministry was in receipt of request for clarification regarding the definition of the term 'educational institution' under which exemption under the ElA Notification,2006, as amended, was applicable. Acting upon the representation, the matter was then referred to the Ministry of Education for seeking clarification pertaining to the definition of Educational Institution wherein it was informed that Educational Institution as defined under the Noise Pollution (Regulation and Control) Rules, 2000 may be considered as the appropriate definition. Based on the above clarification the Ministry vide OM dated 19/05/2022 issued a clarification on the applicability of EIA Notification, 2006 for Educational Institutions which merely reiterated the definition of "educational institution" as already incorporated in the Noise Pollution (Regulation and Control) W.P.(C) No. 3097/2016 & :5: C.O.(C) No. 1063/2022 Rules, 2000.
6. It is further submitted that the Hon'ble Supreme Court of India vide Judgment dated 9/12/2021 in CIVIL APPEAL NO. 7576 OF 2021 Electrosteel Steels Limited vs. Union of India and Ors while dealing with the issue of applicability of OM has held that: "... The interim stay passed by the Madras High Court can have no application to operation of the Standard Operating Procedure to projects in territories beyond the territorial jurisdiction of Madras High Court..."Para 93). The aforementioned directions of Hon'ble Supreme Court reinforces the principle that the orders of Hon'ble High Court are applicable to their respective territorial jurisdiction.
7. It is futher submitted that the Ministry vide OM dated 28/06/2022 issued an addendum to the OM dated 19/05/2022 which reads as follows: "In view of the interim Order of the High Court of Kerala at Ernakulum [in writ petition W.P. (C) No. 3097 of 2016 (S)] dated 17.09.2020 and 23.11.2020 against the amendment to the ElA Notification, 2006 dated 22.12.2014, the aforesaid clarification is applicable within the territorial jurisdiction of High Court of Kerala subject to the outcome of the aforementioned writ petition pending in the High Court of Kerala at Ernakulam." Hence the Ministry vide the addendum has clarified that for all projects within the territorial jurisdiction of High Court of Kerala, the applicability of the OM dated 19.05.202 is subject to the outcome of the instant petition. A W.P.(C) No. 3097/2016 & :6: C.O.(C) No. 1063/2022 true copy of the OM dated 28.06.2022 is produced herewith and is marked as Annexure R1(a).
8. It is submitted that the Ministry has the highest regards for the Hon'ble Court and has acted in good faith only to re literate the stated position in the Statute and nothing beyond that which cannot be deemed to have been carried out in wilful and purposeful disobedience of the directions of this Hon'ble Court."
3. Office Memorandum dated 20.06.2022 issued by the Ministry of Environment, Forest and Climate Change Impact Assessment Division, Government of India is produced as Annexure R1(a) and it reads thus:
"28th June, 2022 OFFICE MEMORANDUM Subject: Addendum to the clarification dated 19 th May 2022 on the applicability of ElA Notification 2006 for Educational Institutions regarding Ministry of Environment, Forest and Climate Change vide Office Memorandum even number dated 19th May 2022 issued a clarification on the applicability of EIA Notification, 2006 tor Educational Institutions.
W.P.(C) No. 3097/2016 & :7:C.O.(C) No. 1063/2022
2. In this regard, taking into account the Writ Petition No. 3097/2016 pending before the Hon'ble High Court of Kerala and the recent order of Hon'ble Supreme Court dated 9 th December, 2021 in the matter of Civil Appeal Nos. 75767577 of 2021 in Electrosteel Steels Limited Vs. Union of India and Ors., the following para has been incorporated in para 5 o the above mentioned OM dated 19 th May 2022:
"In view of the interim Order of the High Court of Kerala at Ernakulam in writ petition, W.P.(C) No. 3097 of 2016 (S) dated 17.09.2020 and 23. 11.2020 against the amendment to the ElA Notification, 2006 dated 22.12.2014, the aforesaid clarification is applicable within the territorial jurisdiction of High Court of Kerala subject to the outcome of the aforementioned writ petition pending in the High Court of Kerala at Ernakulam."
3. The issues with the approval of the Competent Authority.
sd/ SUNDAR RAMANATHAN) Scientist F"
4. Even though Sri. Ranjith Thampan, learned Senior Counsel, submitted that there is wilful and intentional disobedience of the orders of this Court in W.P.(C) No. 3097 of 2016 and hence, there should be a direction for the personal appearance of the alleged contemnor, we are not inclined to do so. However, only a statement is filed as regards the averments made in the affidavit filed in support of I.A.No.
W.P.(C) No. 3097/2016 & :8:C.O.(C) No. 1063/2022 2 of 2022.
5. In terms of the provisions of Contempt of Courts Act, 1971 and the Kerala High Court Act, 1958, the alleged contemnor has to file an affidavit in C.O.(C) No. 1063 of 2022 on the averments made in the Contempt Petition. Accordingly, we direct the respondent in the Contempt Petition to file an affidavit within two weeks with all supporting documents.
6. That apart, the learned counsel appearing for the alleged contemnor submitted that no fresh clearance would be granted based on the clarifications/office memorandum dated 28.06.2022 as stated supra. Statement of the learned Central Government Counsel is placed on record.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv 26-07-2022 /True Copy/ Assistant Registrar