- (1.) WE have heard learned counsel for parties and perused the pleadings of writ petition. This writ petition has been filed inter-alia with the prayers for issuance of (i) a writ, order or direction in the nature of certiorari quashing the tender notice dated 08th /11th March, 2013, issued by respondent no.3, as contained in Annexure No.1, to the writ petition; and (ii) a writ, order or direction in the nature of mandamus commanding respondent no.3 not to proceed further with the processing of tender notice dated 8th /11th March, 2013, as contained in Annexure No.1 and settle the areas in question only after notifying the tender notice afresh in line with the Government Order dated 31st May, 2012 read with the judgment and order dated 29th January, 2013, passed in Writ-C No. 37725 of 2012 and other connected matters.
(2.) LEARNED counsel for petitioner Shri Akhilesh Kalra submitted that the impugned tender notice requires obtaining of Environmental Clearance Certificate within six months by the applicant, which according to him, is contrary to the judgment passed by a co-ordinate Bench at Allahabad in Writ-C No. 37725 of 2012 (Nar Narayan Mishra Vs State of U.P. U.P. and others) and the connected matters in the bunch. The relevant discussion about the question as to who (the State Government or the applicant ) should be required to obtain the environmental clearance, in terms of the judgment of Hon'ble the Apex Court as passed in the case reported in (2012) 4 SCC 629 (Deepak Kumar and others V State of Haryana) in the judgment of Nar Narayan Mishra is reproduced as: "It is submitted that in case a person who has been approved for granting mining lease fails to obtain environmental clearance within a period of six months, the order granting lease shall stand cancelled is arbitrary and unjustifiable since for environmental clearance more than six months time is statutorily provided and further a person applying for environmental clearance has no control on the authorities who are entrusted to grant environmental clearance. Such condition is unjust and shall cause great prejudice to a person who has been granted lease after completion of all formalities." Thus, according to learned counsel for petitioner, the impugned tender notice being contrary to the above observations of the Court requiring the applicant-petitioner to obtain the Environmental Clearance Certificate, would not be sustainable in law and hence deserves to be quashed. On the other hand, Smt. Bulbul Godial, learned Additional Advocate General, appearing for the State of U.P. submitted that the State Government has already notified the rules dated 23.12.2012, which has been noticed in the aforesaid judgment by the Division Bench at Allahabad. It is further submitted that a Government order dated 26.2.2013 has been issued later in order to supplement the aforesaid rules so as to cover the subject as to who namely, the applicant or the State Government would be under the obligation to obtain the Environmental Clearance Certificate. The relevant paragraph of the Government order, being in Hindi, is produced as:- "[VERNACULAR TEXT OMMITED] Learned Additional Advocate General also contends that in the gazette notification dated 6.4.2011 issued by the Government of India, Ministry of Environment and Forest, it has been provided as: "(I) In para 6, for the existing words "An application seeking prior environmental clearance in all cases shall be made", the following words shall be substituted, namely:- "An application seeking prior environmental clearance in all cases shall be made by the project proponent".
(3.) HOWEVER , by this notification, the earlier notification dated 14th September 2006 has been amended. The unamended Section 6 of this notification is reproduced as 6. Application for Prior Environmental Clearance (EC):- An application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed herewith and Supplementary Form 1A, if applicable, as given in Appendix II, after the identification of prospective site(s) for the project and/or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. The applicant shall furnish, alongwith the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1A, a copy of the conceptual plan shall be provided, instead of the pre-feasibility report.(B to B). Thus, the clearance has to be obtained only by the project proponent. However, according to her, this notification was probably not placed before Hon'ble the Apex Court, during the course of hearing, in the case of Deepak Kumar (supra). On a careful analysis of rival submissions, we are of considered view that the arguments raised by learned counsel for petitioner, deserve consideration, for, the Division Bench at Allahabad in its judgment in the case of Nar Narayan Mishra as referred to hereinabove has clearly provided that a person applying for environmental clearance has no control over the authorities who are empowered to grant it. It appears that at this stage, learned Advocate General Shri S.P.Gupta, informed the Court that the Rules to be framed by the State Government in terms of the judgment of Hon'ble the Apex Court in Deepak Kumar's case (supra) was in the process. It may also be relevant to point out that in the pending Writ Petition No.8849 of 2012 (MB) (Ved Pal Singh Vs State of U.P. and others) the learned State Counsel vide order dated 18.10.2012 had given a statement that the draft Rules dealing with the Environmental clearance was pending with the Administrative Department and had prayed for placing the same after notification on the record of the Court. Ir appears that during the period when the case of Nar Narayan Mishra was reserved awaiting verdict a copy of Rules was placed before the Allahabad Bench but the Court did not take notice thereof for the reason that it was not under challenge in the writ petition. However, irrespective of observations of the Allahabad Bench and the statement before this Court to frame and place the Rules on record, this important aspect relating to Environmental Clearance Certificate was not touched upon. ;