(1) (6) WP 8581/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 8581 OF 2011 Hindustan Electricity Genaration Company Pvt. Ltd. & Anr. .. Petitioners Vs. The Union of India through The Ministry of Environment and Forests & Ors. .. Respondents Mr. Navroz Seervai, Sr. Advocate a/w. Mr. Kevik Setalwad, Sr. Advocate i/b M/s. Mulla & Mulla & Craigie Blunt & Caroe for the Petitioner. Mr. S. R. Nargolkar, Addl. Govt. Pleader for the Respondent-State. Mrs. Sharmila Deshmukh for Respondent No.5. CORAM : MOHIT S. SHAH, C.J. AND MRS. ROSHAN DALVI, J. Date : 15 NOVEMBER 2011. P.C. 1. In this petition under Article 226 of the Constitution, the petitioner has challenged a part of the decision dated 28 March 2011 of the Maharashtra State Environmental Impact Assessment Authority (SEIAA) in relation to the petitioner’s application for environmental clearance for setting up an electricity generation plant. 2. The Government of India, Ministry of Environment and (2) (6) WP 8581/11 Forest issued notification dated 14 September 2006 imposing restrictions and prohibition on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the Schedule to the notification, unless prior environmental clearance has been obtained from the Central Government or the State Government. As per item 1(d) of the said Schedule Thermal Power Plants below 500 MW are graded as Category B projects for which environmental clearance is to be secured from the State authorities and those above 500 MW are graded as Category A projects required to secure environmental clearance from the Central Government. 3. Petitioner No.1 is hereinafter referred to as the Petitioner. On 30 September 2009 the petitioner applied to the State of Maharashtra for environmental clearance for Thermal Power Project at village Talegaon, District Pune for generation capacity of 355 MW. In the said application the Petitioner mentioned size of the project 355 +/- 10% MW Combined Cycle Power Project. Thereafter on 13 January 2010, the petitioner submitted a proposal for expansion of project indicating that Phase I of the project was for generation capacity of 355 MW +/- 10% MW and in the subsequent phase the petitioner would expand generation (3) (6) WP 8581/11 capacity upto 2500 MW. 4. At the 36th meeting of the State Environmental Impact Assessment Authority, Maharashtra held on 28 March 2011 the following minutes were recorded in respect of proposal of the petitioner company : B-1. Environmental clearance for proposed Phase I of 355 +/- 10% MW Gas based combined cycle power plant at village Badhalwadi, Taluka – Maval, District – Pune, Maharashtra by M/s. Hindustan Electricity Generation Company Pvt. Ltd. (File No. SEAC-2009/ CR 178/T.C. 2) SEIAA considered the proposal in its 24th, 25th & 26th meetings and it was decided to accord environmental clearance to the project depending upon submission & results of scrutinizing following documents:- 1. Details about LOA 2. Details about composition of Natural gas. 3. Response in writing to all issues raised the received complaint against the project like protest by villagers, Gramsabha, felling of trees, protection of wildlife. 4. Permission from revenue Authority that the total land available for the project is corrected N.A. 5. Copy of the order given for installation of machinery on the site. Project proponent will not go for expansion prior to installation & commissioning of the present project. Authority noted that, the above decision was without prejudice to the court case pending in the court of law and whatever decision the Hon’ble Court will take will be binding on the project proponent. Hence this decision of Authority does not give immunity to the project proponent in the case filed against him. Authority discussed the documents (4) (6) WP 8581/11 submitted to it. It was observed that, information on points 2, 3 & 5 has not been submitted as desired by the authority. It was noted that the project proponent had applied to the Central Committee of MoEF for expansion while the EC for the current application before this committee is not yet accorded. The Authority also observed that the Navlakh Umbre Parisar Pryavaran Vikas Sangh has challenged the jurisdiction of SEAC & SEIAA as per MoEF circular no J-13012/1162009-1A II(I) dated 22nd March, 2010 about consideration of expansion of thermal power projects. After deliberations, considering all above facts the Authority decided to refer the case to MoEF for further directions in the matter with reference to its clarification dated 22/03/2010 and necessary action, if any, in the matter. (emphasis supplied) 5. After the aforesaid meeting, the State Government sought clarification of the Central Government whether the application made by the Petitioner in the present case should be heard by the State Level Appraisal Committee and the State Level Assessment Authority, since the company had made its initial application for less than 500 MW but later proposed expansion of the project up to 2500 MW. 6. The Petitioner company, thereafter, withdrew the application for expansion of the power plant and the Government of India informed (5) (6) WP 8581/11 the State Government by letter dated 3rd August, 2011 that the petitioner company had withdrawn the proposal for expansion of the power plant and therefore the proposal of the Petitioner company for 355 MW being B category project is to be appreciated by State Level Appraisal Committee. The Central Government further indicated in the said letter that in view of withdrawal of the proposal for expansion, the Central Government had closed the file regarding expansion proposal of the Petitioner company. 7. The Petitioner has challenged the minutes of the aforesaid 36th meeting held on 28 March 2011 in so far as the SEIAA required the Petitioner company to submit the following particulars : “5.Copy of the order given for installation of machinery on the site. Project proponent will not go for expansion prior to installation & commissioning of the present project.” 8. Mr. Seervai, learned Counsel for the Petitioner company submits that since the Petitioner has already withdrawn the proposal for expansion as noted in the letter dated 3 August 2011 of the Central Government, there is no question of the petitioner going for expansion. As regards the requirement to submit copy of the order for installation of the machinery sought, the learned Counsel submits that cost of the power project for generation of 355 MW electricity goes upto Rs.900 crores and (6) (6) WP 8581/11 Rs.300 crores would be cost of the machinery required to be installed. It is submitted that the State Assessment Authority could not have required the petitioner company to give an order for installation of machinery worth Rs.300 crores on the site when the Assessment Authority has not granted formal environmental clearance. 9. Mr. Nargolkar, learned Addl. Government Pleader has submitted that when the meeting was held on 28 March 2011 it was noted by the Assessment Authority that the petitioner company was going in for expansion and, therefore, the Assessment Authority wanted to be satisfied that the petitioner company should place on record the order for installation of the machinery for the initial project before going for expansion of the power generation capacity. 10. In response to a query from the Court as to whether, now that the Central Government has made it clear that the Petitioner company has withdrawn the proposal for expansion, it is still necessary for the Assessment Authority to demand a copy of the order for installation of the machinery, the learned Addl. Government Pleader submits that the petitioner must still submit a copy of the order for installation of the machinery on the site for the Assessment Authority to satisfy itself about (7) (6) WP 8581/11 genuineness of the Petitioner’s claim that they want to set up power plant of 355 MW. 11. We find substance in the contention urged on behalf of the petitioner company that before the Assessment Authority issues the environmental clearance, the Petitioner company cannot be expected to place an order for installation of machinery worth Rs.300 crores as no prudent businessman would place such an order for purchase of machinery worth Rs.300 crores before getting environmental clearance from the Assessment Authority. It appears to us that the Assessment Authority required the Petitioner to submit a copy of the order for installation of the machinery on the site for the purpose of considering whether the Petitioner company had already given order for installation of the machinery for the generation of 355 MW before going for expansion upto 2500 MW. It was in this context that the Assessment Authority had asked the petitioner to place on record the copy of the order given for installation of the machinery on the site. It is clear that the petitioner does not intend to go for expansion and the Central Government has already made it clear in its letter dated 3 August 2011, that the Central Government has closed the petitioner’s file for expansion. Hence the condition for placing on record the copy of the order for (8) (6) WP 8581/11 installation of machinery on the site for generation of 355 MW electricity cannot now be enforced and the petitioner is justified in challenging the same. 12. In view of the above discussion, we dispose of this petition with a direction that the State Environmental Impact Assessment Authority shall consider the petitioner’s application for environmental clearance to the project for generation of 355 +/- 10% MW in light of the minutes of its 36th meeting held on 28 March 2011, but without insisting upon the requirement mentioned at Item 5 which reads as under : 5. Copy of the order given for installation of machinery on the site. Project proponent will not go for expansion prior to installation & commissioning of the present project. 13. We make it clear that we have not at all gone into the issue raised by the petitioner about deemed clearance under Clause 8 of the Central Government Notification dated 14 September 2006. 14. It is further clarified that since challenge to jurisdiction of the SEAC & SEIAA has already been negatived by the judgment dated 18 October 2011 of this Court in Criminal Writ Petition No. 833 of 2011, the SEAC & SEIAA under the Central Government Notification dated 14 September 2006 shall consider the petitioner’s application for (9) (6) WP 8581/11 environmental clearance for its 355 +/- 10% MW power generation capacity plant without being deterred by pendency of any petition before this Court or any other cases before any other Court in State of Maharashtra. 15. As regards prayer (c) (ii) in the petition, the petitioner has prayed for the direction to Respondent No.5, Maharashtra State Pollution Control Board to issue the requisite consent for establishment of the power project. Learned Counsel for the Petitioner states that since the consent has already been granted on 9 November 2011, it is not necessary to consider the said prayer. 16. The petition is accordingly disposed of in terms of above directions and clarifications. CHIEF JUSTICE ROSHAN DALVI, J.