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2020 DIGILAW 541 (TS)

M. Raji Reddy v. Union Of India

2020-07-09

B.VIJAYSEN REDDY, RAGHVENDRA SINGH CHAUHAN

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JUDGMENT 1. The present writ petition has been filed challenging the Public Consultation (Public Hearing) organized by the Telangana State Pollution Control Board, respondent No. 3, and by the Environmental Engineer, Telangana State Pollution Control Board, respondent No. 4, scheduled to be held on 10.07.2020 at 11:00 a.m. and onwards. 2. With the consent of both the learned counsel, this writ petition is being decided at this stage itself. 3. Briefly, the facts of the case are that the Government has planned to develop the Zaheerabad National Investment and Manufacturing Zone ('NIMZ', for short) in Sangareddy District by M/s. Telangana State Industrial Infrastructure Corporation Limited ('TSIICL', for short). According to TSIICL, the project would cover an area of 12,635 acres (approximately 5,113 Hectors). The project would further cover lands within seventeen villages in two different Mandals of Sangareddy District, namely Nyalkal and Jharasangam Mandals. The proposal for developing the entire project was submitted before the Ministry of Environment, Forest and Climate Change, as far back as in 2017. On 24.01.2018, the said proposal was considered by the Expert Appraisal Committee ('EAC') for Industrial Estate/Area of the Ministry of Environment, Forest and Climate Change, New Delhi. The said proposal was accorded permission subject to preparation of the Environment Impact Assessment Report and Environment Management Plan ('EMP') with public consultations. The said proposal was approved with certain specific conditions. Since such a large project cannot be implemented without holding a public consultation, the respondent Nos. 3 and 4 have scheduled to hold a public hearing on 10.07.2020. Hence, the present writ petition before this Court. 4. Mr. Arjun Kumar, the learned counsel for the petitioner, has raised the following contentions before this Court:- Firstly, since the project affects the villagers of seventeen villages, the affected persons under the project would need to be heard at the public hearing. Even according to the Government, it expects at least 1,000 persons to gather at the public hearing. According to him, this is clear from the fact that according to the counter submitted by the State Government, a stock of 3,000 masks and 3,000 bottles of sanitizers would be kept at the site. Secondly, according to the notification issues by the Ministry of Home Affairs, Government of India, dated 29.06.2020, the guidelines have been issued for promoting activities and prohibiting certain activities during the period of unlock 2.0. Secondly, according to the notification issues by the Ministry of Home Affairs, Government of India, dated 29.06.2020, the guidelines have been issued for promoting activities and prohibiting certain activities during the period of unlock 2.0. According to the guidelines, "large public gatherings/congregations continue to remain prohibited" till 31.07.2020. Moreover, the said guidelines have also been adopted by the State Government in its G.O.Ms. No. 93, dated 30.06.2020. Therefore, according to the learned counsel, in light of the guidelines issued by the Central Government, and in light of the fact that the State Government has agreed to implement the guidelines of the Central Government, the proposed public gathering is in violation of both the Central guidelines, and the State Guidelines. Thirdly, relying on the case of Hanuman Laxman Aroskar v. Union of India, 2019 15 SCC 401 , the learned counsel pleads that holding of a public hearing/public consultation is not a mere formality. The underlying intention of public consultation is an important constitutional value. The decisions which affect the lives of the individuals must be heard, and must be given a chance to express their concerns after obtaining full knowledge of a project and its potential environmental effect. But considering the fact that the State is in the grip of Covid-19 pandemic, many affected persons may not be able to attend the public hearing, and may not be in a position to express their concerns. Therefore, even if a public hearing were to be held, it would merely be an illusionary public hearing, and not a substantive one. Fourthly, in the last two weeks, Coronavirus has spread its tentacles to a great extent within the State. Even in Sangareddy District, there is already spread of Coronavirus from three persons on 06.07.2020 to twenty persons on 08.07.2020. Thus, there is a sharp increase in the number of persons being affected. The learned counsel submits that, at this stage, a large gathering of public would become a hotspot for the spread of coronavirus. Therefore, the said gathering should be prevented from taking place. Lastly, in case a public hearing were to be held, which for all practical purpose, would be ineffective public hearing, the entire process, as envisaged by the law, would be scuttled. For, on the basis of the illusionary public hearing, the entire project moves to the next stage of "appraisal". Therefore, the said gathering should be prevented from taking place. Lastly, in case a public hearing were to be held, which for all practical purpose, would be ineffective public hearing, the entire process, as envisaged by the law, would be scuttled. For, on the basis of the illusionary public hearing, the entire project moves to the next stage of "appraisal". Most importantly, since the permission granted for completing the process is valid till February, 2021, the learned counsel submits that the Government should not be in a crashing hurry to hold the public hearing when the State is in the grip of Covid-19. 5. On the other hand, Mr. B.S. Prasad, the learned Advocate General, submits that "sufficient arrangements" have been made by the State to ensure that there will be 3,000 bottles of sanitizers, 3,000 masks, forty infrared thermometers, 2,000 gloves, pedestal sanitizers, for the use of the people, who would gather at the venue. He further submits that already seating arrangements have been made keeping in mind the social distancing that would be required to be maintained. 6. Secondly, since it is imperative for the State to usher industrialization, it is imperative that the public hearing to be held as soon as possible so that the project can be implemented as expeditiously as possible. According to the learned Advocate General, the completion of the project would not just permit the Government to invite investments from abroad, but most importantly, it will create job opportunities for the people of the State. According to the Project Report, the project will generate direct and indirect employment and has potential of generating 2.44 lakh jobs. This will be a great boon to the State economy, and would improve the living conditions of the people of the State. 7. Thirdly, the guidelines, dated 29.06.2020 prohibits Social/ political/ sports/ entertainment/ academic/ cultural/ religious functions, but do not prohibit the State functions from being organized, even if such State functions require a large gathering of people. Therefore, according to the learned Advocate General, the guidelines do not prohibit the State from organizing the public hearing scheduled to be held on 10.07.2020. Hence, according to the learned Advocate General, the public hearing should be permitted to be held on 10.07.2020. 8. Heard the learned counsel for the parties, and perused the material available on record. 9. Therefore, according to the learned Advocate General, the guidelines do not prohibit the State from organizing the public hearing scheduled to be held on 10.07.2020. Hence, according to the learned Advocate General, the public hearing should be permitted to be held on 10.07.2020. 8. Heard the learned counsel for the parties, and perused the material available on record. 9. The relevant guidelines dated 29.06.2020 issued by the Ministry of Home Affairs, Government of India, are as under: Guidelines for Phased Re-opening (Unlock 2) [As per Ministry of Home Affairs Order No.40-3/2020-DM-I (A) dated 29 June, 2020] 1. Activities permitted during Unlock 2 period outside Containment Zones In areas outside Containment Zones, all activities will be permitted, except the following: (i) Schools, colleges, educational and coaching institutions will remain closed till 31 July, 2020. Online/ distance learning shall continue to be permitted and shall be encouraged. Training institutions of the Central and State Governments will be allowed to function from 15 July, 2020, for which Standard Operating Procedure (SOP) will be issued by the Department of Personnel & Training (DoPT). (ii) International air travel of passengers, except as permitted by MHA. (iii) Metro Rail. (iv) Cinema halls, gymnasiums, swimming pools, entertainment parks, theatres, bars, auditoriums, assembly halls and similar places. (v) Social/political/sports/entertainment/academic/cultur al/religious functions and other large congregations. Date for re-starting the above activities may be decided separately and necessary SOPs shall be issued for ensuring for social distancing and to contain the spread of COVID-19. xxxxx 10. A bare perusal of the relevant guidelines clearly reveal that the Central Government has prohibited not only Social/political/ sports/entertainment/academic/cultural/religious functions, but also "other large congregations". According to the guidelines, the same are prohibited and continue to remain prohibited till 31.07.2020. The only exception made in Annexure-I, attached to the guidelines, to a large public gathering is either a marriage, where the gathering is permitted to be up to fifty persons, or funeral/last rites where a gathering of twenty persons is permitted. However, the guidelines do not make any exception to the State function. Therefore, the contention raised by the learned Advocate General that the guidelines do not prohibit the organization of a State function is belied by the guidelines quoted hereinabove. 11. A bare perusal of G.O.Ms. However, the guidelines do not make any exception to the State function. Therefore, the contention raised by the learned Advocate General that the guidelines do not prohibit the organization of a State function is belied by the guidelines quoted hereinabove. 11. A bare perusal of G.O.Ms. No. 93, dated 30.06.2020 reveals that the State Government has clearly noted that the guidelines issued by the Ministry of Home Affairs, Government of India, dated 29.06.2020 extend the lockdown in Containment Zones till 31.07.2020, and permit the reopening of activities in calibrated manner. The same has been adopted by the State Government. Having adopted the same, directions have been issued to the District Magistrates, Commissioners and Superintendents "to strictly implement the above order with immediate effect". Once the State Government has adopted the guidelines issued by the Central Government, obviously, the State Government cannot be permitted to violate the said guidelines. 12. Even according to the counter filed by the State Government, a gathering of about 1,000 persons is envisaged on 10.07.2020. Needlesstosay, such a "large public gathering" cannot be organized in light of the guidelines issued by the Central Government, and adopted by the State Government. For, the organizing of a large public gathering would be in violation of the Central Government guidelines. 13. Although the learned Advocate General claims that all facilities, and precautions are being taken by the State Government to ensure that there is no spread of Coronovirus at the gathering, but the guidelines issued by the Central Government make no exception to the prohibition imposed upon a large gathering. Therefore, even if the State Government has made "sufficient preparations" for the gathering, even then, the gathering cannot be allowed as it would clearly violate the guidelines issued by the Central Government and accepted by the State Government. 14. Once this Court has concluded that the holding of the public hearing would be in violation of the Central and State guidelines, this Court need not deal with the other contentions raised by the learned counsel for the parties. 15. Therefore, this Court directs that the public hearing scheduled to be held on 10.07.2020 shall not be held. 14. Once this Court has concluded that the holding of the public hearing would be in violation of the Central and State guidelines, this Court need not deal with the other contentions raised by the learned counsel for the parties. 15. Therefore, this Court directs that the public hearing scheduled to be held on 10.07.2020 shall not be held. However, as a public hearing is required to be held for the implementation of the project, the Government shall be free to hold the public hearing at a future date, provided that on the future date, the Central Government guidelines permit the State to organize a large gathering/congregation of people. Any such public hearing/congregation will have to be organized and held strictly in accordance with law. 16. For the reasons stated above, this writ petition is, hereby, allowed. No order as to costs. 17. Miscellaneous Applications, pending if any, shall stand closed.