Delhi High Court
Vikrant Tongad vs Union Of India (Moefcc) on 30 June, 2020
$~2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 30th June, 2020
+ W.P.(C) 3747/2020 & CM APPL.13426/2020
VIKRANT TONGAD ..... Petitioner
Through: Mr. Gopal Shankarnarayanan, Sr.
Adv. with Ms. Shrishti Agnihotri, Mr. Abhishek
Jebraj & Mr. Vanshdeep Dalmia, Advs.
versus
UNION OF INDIA (MOEFCC) ..... Respondent
Through: Ms. Maninder Acharya, ASG with
Mr. Anurag Ahluwalia, CGSC withMr. Abhigyan
Siddhant & Mr. Viplav Acharya, Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
: D. N. PATEL, Chief Justice (Oral)
Proceedings of the matter have been conducted through video
conferencing.
1. This petition has been preferred with the following prayers:
"a. Issue a Writ in the nature of Mandamus or any other
appropriate writ, order or direction to the Respondent to extend
the notice period to the public, in the draft EIA notification
2020 until 30 September, 2020 or till such further period till the
Covid-19 lockdown/ restrictions subsist;
b. Issue a Writ in the nature of Mandamus or any other
appropriate writ, order, or direction to the Respondent to make
translated copies of the draft notification available across the
country in the official vernacular languages mentioned in the
Eighth Schedule to the Constitution, and upload the same on all
its websites including those of the Environment Ministries of all
the States as well as those of the State Pollution Control
Boards;
c. Issue a Writ in the nature of Mandamus or any other
appropriate writ, order or direction to the Respondent to
conduct consultations with various stakeholders and concerned
persons across the country through its State Pollution Control
Boards, as a precondition to considering the draft notification;
d. Pass any other directions or orders as deemed fit by this
Hon'ble Court."
2. The Central Government, in exercise of the power conferred by
Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986,
issued a draft notification dated 23rd March, 2020 for imposing certain
restrictions and prohibition on the undertaking some projects or expansion
or modernisation of such existing projects entailing capacity addition, in any
part of India. This draft notification was issued for the information of the
public likely to be affected thereby, and inviting any objections or
suggestions on the proposal contained in the draft notification in writing for
consideration of the Central Government, and notice was given that the said
draft notification shall be taken into consideration on or after the expiry of a
period of sixty days from the date on which the copies of the gazette
containing notification are made available to the public. This draft
notification was published on 11th April, 2020 in the Gazette of India.
3. For ready reference Section 3(1) and Section 3(2)(v) of the
Environment (Protection) Act, 1986 read as under:
"3. POWER OF CENTRAL GOVERNMENT TO TAKE
MEASURES TO PROTECT AND IMPROVE
ENVIRONMENT.- (1) Subject to the provisions of this Act, the
Central Government, shall have the power to take all such
measures as it deems necessary or expedient for the purpose of
protecting and improving the quality of the environment and
preventing controlling and abating environmental pollution.
xx xx xx
(2)(v) restriction of areas in which any industries, operations or
processes or class of industries, operations or processes shall
not be carried out or shall be carried out subject to certain
safeguards;"
4. The original notification was published on 11th April, 2020 under
Rule 5(3)(c) of Environment (Protection) Rules, 1986 to be read with
Section 3 of Environment Protection Act, 1986. For ready reference Rule
5(3)(a) and Rule 5(3)(c) of the of Environment (Protection) Rules, 1986 read
as under:
"5. Prohibitions and restrictions on the location of industries
and the carrying on processes and operations in different
areas
.....
(3) (a) Whenever it appears to the Central Government that it is
expedient to impose prohibition or restrictions on the locations
Of an industry or the carrying on of processes and operations
in an area, it may by notification in the Official Gazette and in
such other manner as the Central government may deem
necessary from time to time, give notice of its intention to do so.
xx xx xx
(c) Any person interested in filing an objection against the
imposition of prohibition or restrictions on carrying on of
processes or operations as notified under clause (a) may do so
in writing to the Central Government within sixty days from the
date of publication of the notification in the Official Gazette."
(emphasis supplied)
5. The time to file objections was granted for sixty days. Since this time
limit was to be over on 11th June, 2020, another notification was published
on 8th May, 2020 (at Annexure P-6 of the paper book) extending further the
notice period by sixty days. For ready reference the relevant portion of the
notification dated 8th May, 2020 reads as under:
"AND WHEREAS, the Ministry of Environment, Forest
and Climate Change is in receipt of several representations for
extension of notice period expressing concern that the draft EIA
Notification 2020 was published during the lockdown imposed
due to the Corona Virus (COVID-19) pandemic;
AND WHEREAS, the Ministry of Environment, Forest
and Climate Change after due consideration, deems it fit to
extend the notice period for a further period;
Now, therefore, the Central Government in exercise of
the powers conferred by sub-section (1), and clause (v) of sub-
section (2) of section 3 of the Environment (Protection) Act,
1986 (29 of 1986) hereby extends the notice period for a further
period of sixty days. The draft notification issued vide S.O.
1199(E), dated the 23rd March, 2020 and published on 11 th
April, 2020 in the official gazette shall be taken into
consideration for finalization on or after the 30th June, 2020;"
(emphasis supplied)
6. In view of the aforesaid notification dated 8th May, 2020 Annexure P-
6, it appears that because of prevailing situation of lockdown due to Covid-
19 pandemic the time limit has been extended for a further period of sixty
days, whereas, the last date/cut-off date mentioned therein is 30th June, 2020.
This is an error apparent on the face of the record.
7. Thus, looking to the earlier notification which was published on 11th
April, 2020 (Annexure P-5 to the memo of this writ petition), the time limit
to file objection was upto 11th June, 2020 and the subsequent notification
dated 8th May, 2020 (Annexure P-6 to the memo of this writ petition)
extending the notice period for a further period of sixty days, it appears that
the notice period will be over on 11th August, 2020 whereas in the
notification dated 8th May, 2020 it has been mentioned as 30th June, 2020.
We, therefore, clarify that the time limit to file the objections to the draft
notification is up to 11th August, 2020.
8. It was contended on behalf of the respondents that the time limit for
submitting objections was in fact extended only upto 30 th June, 2020 as
provided in the notification dated 8th May, 2020. However, it is evident from
a reading of the said notification that the extension for a "further period of
sixty days" also finds mention therein. There is thus, at the very least, a
facial ambiguity in the notification, which in our view must be resolved in
favour of the public whose comments are invited thereby. This would also
aid the process of effective public consultation, which is built into the
statutory scheme, and for which purpose the extension notification dated 8 th
May, 2020 was issued.
9. The second issue canvassed by learned Senior Counsel for the
petitioner was regarding the languages in which the draft notification dated
23rd March, 2020 (published in the Gazette of India on 11 th April, 2020) has
been made available to the public. It was contended that the draft has been
published only in English and Hindi, whereas it is proposed to have effect
all over India and to several industries and comments have naturally been
elicited from all over the country. The affidavit dated 30th June, 2020 filed
by the respondents states in this connection that the notifications are
published in the Gazette only in Hindi and English, but comments and
responses can be made in multiple languages, and have in fact been made in
other languages as well, which will also be considered. Learned Senior
Counsel for the petitioner has pointed out that the respondent has, in the
past, published its draft notification in several other languages also. He has
drawn our attention to a notification dated 15 th September, 2010 issued in
connection with the Coastal Regulation Zone in this regard. The said
notification dated 15th September, 2010 states that the draft notification was
published in nine coastal languages in addition to English and Hindi.
10. Having regard to the Notification which prohibits (i) modernization,
(ii) expansion and (iii) establishment of several industries as stated in the
Notification and also looking to the far reaching consequences of the public
consultation process for which the draft notification has been published, we
are of the view that it would be in aid of effective dissemination of the
proposed notification if arrangements are made for its translation into other
languages as well, at least those mentioned in the Eighth Schedule to the
Constitution. Such translation may be undertaken by the Government of
India itself, or with the assistance of the respective State Governments,
where applicable. Such translations should also be published through the
website of the Ministry of Environment, Forest and Climate Change,
Government of India as well as on websites of Environment Ministries of all
the States as well as those of State Pollution Control Boards, within ten days
from today. This would further enable the public to respond to the draft
within the period stipulated in this judgment.
11. The writ petition is allowed to the aforesaid extent and disposed of in
terms of the directions contained hereinabove.
CHIEF JUSTICE
PRATEEK JALAN, J
JUNE 30, 2020
ns
