Justice S.J.Mukhopadhaya
M/s.DLF Power
Ltd. Vs. State of Jharkhand
Reported in AIR 2004 JHARKHAND 85
The petitioner - M/s.DLF-Power
Limited being not satisfied with the order of withdrawal of No Objection
Certificate for short NOC) granted over four years ago, has challenged the
order contained in letter No.1757 dated 17th July, 2002 issued by Jharkhand State
Pollution Control Board (J.S.Pollution Control Board for short).
The NoC earlier granted to the
petitioner has been withdrawn and cancelled in pursuance of letter
No.103-22/EPE dated 18th June,2002 issued from the Ministry of Environment and
Forests. Eastern Regional Office,
Government of India, New Delhi. The
aforesaid letter dated 18th June, 2002 has also been challenged by the
petitioner.
2. The case of petitioner is that it entered into an agreement with
the Coal India Limited (for short CIL) on 11th January, 1995 for setting up
captive power plant, on Build-Own-Operate Basis at Madhuband Washery of Bharat
Coking Coal Limited. Dhanbad (for short
B.C.C.I). As per the agreement,
petitioner is to supply power to Madhuband Washery Areas, at Baghmaro in the
district of Dhanbad (now in the State of Jharkhand).
The land for the power plant was
provided by B.C.C.I., a subsidiary of C.I.L.
As per the agreement, petitioner had to arrange finance,design and
procure, install, operate and maintain fluidized bed combustion bofler
based. Thermal Power Plant along with
various other equipments for the power plant.
Further case of petitioner is
that the plaint based on fluidized bed combustion technology is a latest
technology which is environmental friendly.
The actual cost of the project as installed is about Rs.80 crores.
After signing of the agreement
and acquiring land the petitioner vide its application No.284 dated 28th
august, 1987 applied to the Bihar State Pollution Control Board (for short B.S.
Pollution control Board) for obtaining NOC u/Ss.25 & 26 of the Water
(Prevention & Control of Pollution) act, 1974 (for short Act, 1974) and
u/S.21 of the Air (Prevention & Control of Pollution) Act, 1981 (for short Act,1981) for setting up 1 x 10 MW
Captive Power Plant at Madhuband,NOC u/Ss.25 & 26 of the Act, 1974 and
u/s.21 of Act, 1981 was issued by the B.S. Pollution Control Board to the
petitioner vide Reference No.5-1975 dated 25th March, 1998. On the basis of NOC stated 25th March, 1998
granted by B.S. Pollution Control Board, the petitioner went ahead with the
setting up of the Power Plant and made huge investment of about Rs.80 crores in
the project. It has erected, tested and the plant has already been commissioned
to the month of September, 2002 itself.
According to petitioner, it came
as a shock toreceive letter dated 17th July, 2002 from J.S.Pollution Control
Board stating that the NOC granted byB.S.Pollution Control Board dated 25th
March, 1998 has been cancelled on the plea that NOC was granted without
conducting public hearing which is inconsistent with S.O.No.319-E dated 10th
April, 1997. The petitioner has been
asked to get a fresh environmental clearance before start of construction
activity and has been directed tostop all activities such as site clearance.
The cancellation of NOC seems to
have been done on the direction of 4th respondent Union of India vide letter
dated 18th June, 2002.
3. Further, according to petitioner, the respondents falled to
appreciate the fact that construction and erection of plant had already been
carried out after obtaining NOC and the same has already been completed and
commissioned after huge investment of Rs.80 crores.
It has been alleged that the NOC
has been cancelled in pursuance of an order dated 18th June, 2002, communicated
vide letter dated 17th July, 2002 without issuing any show cause notice to the
petitioner and without taking into consideration the relevant fact that the
plant has already been commissioned and all the construction activities were
complete.
4. Counsel for the petitioner referred to Para 18 of the writ
petition to suggest that the B.S.Pollution control Board granted the NOC taking
into consideration the relevant documents, as mentioned hereunder.
i) The facts stated in their Application and Project report.
ii) Bihar StatePollution Control Board's Notification No.45, dated
8-11-1995.
iii) Provision of related Water & Air Acts.
iv) Check list dated 23-10-1997.
v) The related NOC Committee's decision of 6-3-1998."
It was submitted that the
B.S.Pollution Control Board having issued NOC after following all the
procedures, it was not open for J.S.Pollution control Board to reopen the issue
after about four years.
Apart from the allegation of
violation of rules of natural justice,
it was pleaded that the Doctrine of Promissory Estoppel debars, the
respondents from backing out of its commitment made by it in the course of performance
of its statutory duties. The petitioner having made huge investment of over
Rs.80 crores in setting up and crecting the power plant pursuant to NOC dated
25th March, 1998, the respondents cannot back out at this stage. If the NOC would not have been issued by
B.S. Pollution Control Board, then the petitioner would not have invested any
amount, much less huge amount of Rs.80 crores on setting up of the power plant.
5. Counsel for the petitioner relied on the decision of the Supreme
Court in Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd.
reported in AIR 1983 SC 848 and the case of M.P.Sugar Mills v. State of U.P.
reported in AIR 1979 SC 421 : 1979 All LJ 368.
6. The respondents have not controverted that the petitioner applied
and after due enquiry, the B.S.Pollution Control Board granted NOC to set up 1 x 10 MW captive power plant at
Madhuband vide Memo No.T-1975-Patna dated 25th March, 1998.
The following Stand has been
taken bythe respondent-J.S. Pollution Control Board:
"That the Additional
Directors(s), Government of India, Ministry of Environment, Forest, Eastern
Regional Office, A/3, Chandrasekharpur, Bhubaneshwar by letter No.103-22/EPE,
dated 18th June,2002 requested that the project activities of the construction of
Thermal power plant by the petitioner M/s. D.L.F. adjacent to Madhuban Washery
of M/s.B.C.C.L. be stopped and the "No Objection Certificate"
accorded to the petitioner be withdrawn with a direction not to initiate any
activity preliminary or otherwise at the site without obtaining. "No Objection Certificate" from
the Ministry of Environment and Forests, Government of India, New Delhi.
The reason assigned by the
respondent No.4 in the instant letter is that as per S.O.No.319 (E) dated
10-04-1997 , the Thermal Power Plant proposed to be located within the radius
of 25 KM of Reserve Forest and critically polluted area shall require
environmental clearance from the Central Government, it was informed to the
Respondent No.4 that the State Pollution Control Board, Bihar has granted
"No objection Certificate" for the petitioner's project. The project is attracting the provisions of
Environmental Impact Assessment Notification, 1994 and amendments thereof are required
to get "No Objection Certificate" after the Public hearing conducted
by the Pollution Control Board. The No
Objection Certificate is given on the condition that the environmental
clearance from the Ministry of Environment and Forests should be obtained. The above project is going ahead with construction
activities without complying with the
provision of Environment (Protection) Act, 1986. The project is located in the critically
polluted area, the site clearance and environmental clearance from he Ministry
of Environment and Forest is mandatory.
That the notification of Govt. of
India in the Ministry of Environment and Forest No.S.O.60E dated the 27th
January, 1994 in relation to the Thermal Power Plants specified to schedule-I
annexed to this notification lays down that in exercise of powers conferred by
rule Sec.(1) and Clause (V) of such section (2) of Section 3 of the Environment
(Protection) Act,1988 (29 of 1986) read with Clause (9) of sub0rule (3) of Rule
5 of Environment (Protection) Rules, 1986, has directed that on and from the
date of publication o this notification in the official gazette,expansion of
modernization of any activity (if pollution load is to exceed the existing one)
shall not take place or a new project listed in schedule-I of this notification
shall not be undertaken in any part of India unless it has been accorded
environmental clearance by the CentralGovernment clearance by the Central
Government in accordance with the procedure specified in this notification.
The Thermal Power Plants have
been listed as serial No.19 in the schedule-I of this notification.
That S.O.319 (E) of the
Environment Impact Assessment in relation to the Thermal Power Plant
Notification, New Delhi, the 10th April, 1997, lays down that the power
conferred upon the Central Government by rule Section (1) of Section 3 of the
said Act to take measures for protecting and improving the quality of
Environmental pollution be exercisable by the State Govt. as notified in the
notification of the Government of India in the Ministry of Environment and
Forest No.60E dated 27th January, 1994 in relation to the Thermal Power Plants
specified in Schedule-I annexed to this notification subject to the conditions
and limitations specified in schedule-II annexed to this notification.
That it has been further
mentioned in the "Note" of Schedule-I that any project proposed to be
located within the radius of Twenty Five Kilometre of a reserved forest an
ecologically sensitive area which may include National Park, Sanctuaries,
Biosphere Reservoir, Critically Polluted area within fifty Kilometres of Inter
State boundary shall require environment clearance from the Central
Government."
Similar plea has been taken by
the 4th respondent Union of India.
7. The petitioner has disputed the fact that the power plant has
been set up and is operated within 25 Kms. of forest or critically polluted
area.
8. In the present case the respondents have not disputed the
allegation that before cancellation of NOC, the petitioner was neither noticed,
nor heard.
The principle of audi alteram
partem is the basic concept of the principal
of natural justice. Even in the
field of administrative action, this principle requires to be applied to ensure
fair play and justice.
The NOC was granted topetitioner
u/Ss.25 & 26 of Act, 1974 by the B.S. Pollution Control Board u/S.27 of
Act, 1974, though it was open to the state Board to review from time to time
any condition imposed u/Ss.25 & 26 of the Act, 1974, even in such case, the
State Board is required to serve a notice for revoking any such condition.
9. The respondents have not disputed the fact that the petitioner
has invested more than Rs.80 crores and has already erected set up and
commissioned the plant. However, it is not clear whether the place where Captive
Power Plant has been set up by petitioner (Madhuband) is within the radius of
25 Kms. of reserve forest or critically polluted area or not and thereby
requires environmental clearance from Central Government. In fact, the aforesaid question of fact
should have been decided by the respondents prior towithdrawn/cancellation of
NOC after notice and hearing the petitioner.
10. For the reasons aforesaid, the Court has no option but to set
aside both the orders contained in letter dated 18th June, 2002 issued by he
4th respondent and the letter dated 17th July, 2002 issued by the 3rd
respondent. They are, accordingly, set
aside.
Liberty is given to the
respondents to decide the aforesaid issue, namely, whether Captive Power Plant
in located within the radius of 25 Kms. of reserve forest or critically
polluted area and thereby environmental clearance from the Ministry of
Environment & Forests, Government of India is required or not.
If the respondents intend to
decide the aforesaid issue, will notice the petitioner and decide after hearing
it;
If it is decided that the Captive
Power Plant is located within the radius of 25 kms. of reserve forest or
critically pollution area and thereby requires environmental clearance from the
Central Government, the Central Government, in such case, will do needful taking into consideration the fact that the
petitioner only because of grant of NOC by B.S. Pollution Control Board has
already set up a plant and has already invested about a sum of Rs.80 crores and
the project is for the benefit of M/s.B.C.C.L. a Government of India
Undertaking.
11. The writ petition is allowed,
with the aforesaid observations.
However, there shall be no order, as to costs.
Petition allowed.