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Representation on EIA for urban planning

Environment Support Group ®
S-3, Rajashree Apartments, 18/57, 1st Main Road, S. R. K. Gardens,
Jayanagar, Bannerghatta Road, Bangalore 560041. INDIA
Telefax: 91-80-26341977/26531339/26534364
Email: esg@bgl.vsnl.net.in Website: www.esgindia.org

Regd. Post/Ack Due and Email

Ministry of Environment and Forests,
Paryavaran Bhawan,
CGO Complex,
Lodhi Road,
New Delhi-110 003
24 December 2003

Reg.: Representation on amendment No 975 to EIA Notification dated 27 October 2003

Dear Sir or Madam:

We have gone through the draft notification issued by the Ministry of Environment and Forests dated 27th October 2003 and appreciate the move towards “evolving procedures for the environmental impact assessment of proposed new towns as also laying down broad guidelines for such assessment”. This is proposed by including developments such as “new construction projects”(entry 31) and “new industrial estates”(entry 32) within the purview of Schedule 1 of the Environment Impact Assessment Notification.

1) While the purpose of this seems to be that of evolving a matrix for appreciating the environmental and social impacts of development of infrastructure, towns, industries, etc., the same is not defined clearly enough. Further, several inconsistencies have crept into both the preamble to the draft and the amendments themselves. Such legislative intervention is bound to confound the already existing problem of implementation of law, especially from the point of view of regulation, and may result in many other unforeseen problems.

2) We believe it is certainly essential that existing land use planning legislation largely developed during the 1950s and 1960s, and which did not foresee the need for a detailed appraisal of environmental and social impacts of developments, must evolve to include such dimensions in decision making. While this has become an essential feature of appreciating the impact of development, States have not sufficiently addressed the issue by introducing suitable amendments to existing land use and municipal legislations.

3) The Hon’ble Supreme Court and various High Courts have repeatedly addressed such issues. Many a time the Supreme Court has specifically stepped into dealing with myriad issues of local concern relating to urban development and management, for instance, such as in highlighting problems of solid waste management, hazardous waste management, etc. The Ministry of Environment and Forests has complied with many of the Court’s directions by evolving a set of Rules to force agencies to guide a process of planned development, by way of developing regulatory mechanisms such as the Municipal Solid Waste Management Rules, Biomedical Waste Management Rules, etc. This is in keeping with a continuous response demanded to complex problems that evolve with the present pattern of development, and the proposed amendment to the notification is a welcome move, when seen in such light.

With this background, we now wish to address specific features of the proposed amendment.

4) The preamble lacks in clarity and logical flow of thought. There seems to be an error even in the title of the case referred to which reads “And Quiet Flows the Maily Yamuna V. Central Pollution Control Board”. Even as one goes through the excerpt from the referred judgement and the subsequent notes that follows, the impression one gets is that present amendment’s chief objective is to emphasise the impact of unplanned development on pollution of rivers and water bodies. While this is a fact, it fails to highlight the wider consequences of reckless and haphazard development, particularly in the context of urban areas.

5) Further, the amendment seems to be centred on town planning items, or at least so is the original objective stated, though the operative part of the amendment could be applied to any “new construction project” fulfilling the criteria so prescribed. This can be interpreted as a progressive step to ensure that sensitive appraisal of environmental and social impacts become a part and parcel of any “new construction project”. However, it leaves unattended the question of administrative and economic viability, particularly that of attending to details involved in clearance mechanisms and the capacity of the administrative system to support such a process. Moreover, it leaves scope for attack that an objective treatment of issues has belied the Ministry in proposing the amendment.

6) Moving on to the proposed amendments, the manner in which the amendment has been worded leaves scope for misuse and misinterpretation of the provisions.

Para 3 sub para (g) reads:
“(g) any construction project falling under entry 31 of Schedule-I including new townships, industrial townships, settlement colonies, commercial complexes, hotel complexes, hospitals, office complexes for 1,000 (one thousand) persons or below or discharging sewage of 50,000 (fifty thousand) litres per day or below or with an investment of Rs.50,00,00,000 (Rupees fifty crores) or below;”

7) The introduction of this section, especially its reference within the scope of entry 31 to Schedule 1 of the notification, has been developed without any prior definition of the item itself. The same may also be said for entry 32.

8) The assignment of parameters to define eligibility under this amendment also appears rather confusing. For instance, hospitals could have a bed count of less than 1000, and thus may be interpreted as a facility with less than 1000 persons. However, when including the outpatients, staff and visitors, the number could easily exceed 3 to 4,000. The criteria for compliance within the scope of this amendment may then slip to the next restraint defined, i.e., 50,000 litres of sewage generated. However, it may be that despite supporting a large floating population, the burden of sewage generated may not be as high as is proposed in the amendment. Instead, the impact could be in terms of very high generation of Biomedical Waste, and the resultant problem of its treatment and disposal. Such complexities of interpretation may arise for almost any “new construction project” which meets the 3rd parameter set, that of being Rs. 50 crores and above.

9) While care has been taken to highlight in an Explanatory Note, that projects even in phases and modules would have to comply with the provisions of the EIA Notification, the presentation leaves many issues unaddressed.

10) For example, a large urban development project, of say a total investment of Rs. 100 crores, could be un-bundled as 3 differently identified investments of Rs. 33 crores, just so that it does not qualify for Central Environmental Clearance. The total quantum of impact is certainly that of a 100 crores project, supporting, lets assume, a population of 2,500, and sewage and effluent output of 140,000 litres. However, such a development, even when occurring within a limited impact zone, could easily slip out of the jurisdiction of this notification. Further, each of such investments could upscale the project, again as new investments. Thereby, clearly creating a problem of agglomeration that cannot be treated or regulated by the proposed amendment. This appears to be the challenge posed by urbanisation in India today, which the present amendment clearly fails to address.

11) Another matter of concern is that the definition does not include construction projects of a temporary nature (on a leasehold basis), such as amusement parks, which would surely cause irreparable environmental damage.

12) Then the question arises whether schools, colleges, as well as hostels come under this notification?

13) Further, does the term “settlement colonies” also include rehabilitation colonies of project-affected persons, for instance? If this were the case, it could potentially disrupt the possibility of emergent action of settling evictees in order to uphold their human rights and livelihood needs.

14) As for the proposed substitutions to para 5 in Schedule II: a) Clause (i) requires information to be provided on the quantum of industrial effluents to be discharged in the receiving water body, which appears to contradict and perhaps infringes as well, provisions set out in the Water Act. For the latter expressly prohibits industries from discharging untreated effluent into any receiving body. Whether the discharge is treated or not, does not seem to be a concern in the present dispensation of regulation as proposed in the amendment. b) In a similar context, clause (ii) requires information on “the quantum and quality of water in the receiving body before and after disposal of solid wastes including…..” This sort of presentation clearly poses many problems. Instantly, it is not congruent with the Municipal Solid Waste Management Rules 2000, the Bio-medical Wastes (Management and Handling) Rules 1998 and the Hazardous Waste Management Rules 2000, for discharge of water into landfills, or such other facility, is clearly prohibited. This clause, however, seems to allow for such a discharge!

Such glaring contradictions defeat the very spirit of the proposed amendment to the EIA Notification.

Keeping this in view, we present a simple and straightforward possibility of bringing human settlement development within the scope of the EIA Notification.

15) The 11th and 12th Schedules introduced by way of the Constitutional 73rd and 74th Amendments respectively, list out various items of management by the Panchayat Raj and Nagarpalika institutions. The later amendment also prescribes that a District Planning Committee (or Metropolitan Planning Committee, as the case may be) should be in place to address issues relating to all the items of management so defined. Most State Governments have been particularly inattentive to implementing may planning features of these amendments, and the EIA Notification could well step in to support this cause.

16) Some items listed in the aforementioned enactments that clearly have a wider social and environmental impact, could be required to follow the due process prescribed in the EIA Notification, when they attain the status of a large impact project as defined by a set of criteria (eg. Water consumed, effluent discharge, air pollution caused, solid waste management generated, land consumed, etc.). We highlight some items that could thus fall within the scope of the EIA Notification.

17) Amongst the Schedule 11 items:

3. Minor irrigation, water management and watershed development
4. Animal husbandry, dairying and poultry
5. Fisheries
6. Social forestry and farm forestry
8. Small scale industries, including food processing industries.
22. Markets and fairs
23. Health and sanitation, including hospitals, primary health centres and dispensaries

18) Amongst the Schedule 12 items:

1. Urban planning including town planning
2. Regulation of land-use and construction of buildings
4. Road and bridges
5. Water supply for domestic, industrial and commercial purpose
6. Public health, sanitation, conservancy and solid waste management (this last item is already treated under Solid Waste Management Rules)
14. Burial and burial grounds, cremations and cremation grounds and electric crematoriums
18. Regulation of slaughter houses and tanneries

19) This list is not exhaustive, and may always be improved. However, it gives scope to a systematic environmental and social appraisal of such developments, which is the intention of the proposed amendment.

20) On a different note, this notification gives the feeling that centralisation of power and authority in the Central Government is based on the failure of the State and Local Bodies (both rural and urban) to protect environment. An instance highlighted includes the Ganga River Pollution and the lack of improvement in the water quality of Ganga, despite heavy investments and regulation. The onus of this cannot be located within the jurisdiction and failures of local governments alone, especially when State and Central Governments are involved and the Hon’ble Supreme Court has constantly monitored the issue.

21) Moreover, various legislations like the Town and Country Planning Acts, Urban Development Authority Acts, Municipal Corporation Acts, etc. are already in place to fulfil objectives similar to that proposed in this amendment. While it is the case that despite many such legislations in our country, implementation of its provisions have been lax, especially those that grant regulatory powers, such a failure should force the Centre to pressurise states to implement such progressive laws.

22) Take for example Section 38 (A) (2) of the Bangalore Development Authority (BDA) Act, 1976 which clearly says, “the Authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic amenities, for any other purpose and any disposition so made shall be null and void”. Though this section clearly prohibits such area from being used for anything else, we still find industries and industrial estates coming up in such areas. The Centre could very well question States on why it is allowing for the compromise of reasonably good quality of life for all, by violating basic tenets of urban planning. Such an approach would be facilitative and pro-active.

23) Another example is Sec. 14 of the Karnataka Town and Country Act, 1961 that prohibits a green belt area from being used for industries or other such urban development projects. However, as can be seen from project proposals, such as the Bangalore Mysore Infrastructure Corridor Project, entire townships and related infrastructure are proposed in those very regions. In many of such cases it is the State Government and the local bodies that promote such developments. But the Centre cannot be exempted from blame either, as it has failed to use its existing regulatory powers to force rigour of planning.

24) Will centralisation of control with respect to giving clearances for projects related to urban planning be the solution? Considering the huge number of projects that would come within the purview of the vaguely defined provisions in the proposed amendment, one has to look at the economic and administrative feasibility of such legislation, which could be both misused and misinterpreted. A viable solution could be to impose penalties on the State Government and local bodies for non-compliance of the existing statutory provisions also keeping in mind the guidelines laid down in the Ratlam Municipality Case where Justice V.R. Krishna Iyer and Justice Chinappa Reddy emphasised on decentralisation of powers.

25) There are also many instances where the need for land use planning has met with different results in judicial appraisal. A well-known case is that of Sachidananda Pandey v. State (AIR 1987 SC 1109). The decision of the West Bengal Government to allot a part of the land belonging to the Zoological Garden to the Taj Group of Hotels was challenged by the Union of the workmen of the Zoological Garden. Despite highlighting the importance of preserving ecology, the Supreme Court endorsed the decision of the West Bengal Government.

26) There are also instances where the local bodies have strictly complied with the existing statutory provisions which restrict the unmindful emergence of townships and buildings. In A. Laxmisagar v. State of Karnataka (AIR 1993 Kar 121), the Petitioners challenged the development of a new township known as Arkavathi Green Valley Retreat Scheme to be developed by DLF Universal Ltd. on the ground that it was to be located only 2 kms. from the Thippagondanahalli water reservoir that supplies about 1/3rd of the total water supplied to Bangalore. They contended that the setting up of a township in the vicinity of the reservoir would not only result in pollution of the waters but also aid in depleting water in the reservoir. The proposal of DLF Universal Ltd. to construct such a township was rejected by the Bangalore Water Supply and Sewerage Board (BWSSB) on the ground that it’s establishment in a sensitive area was injurious to public health and interest. When the decision was challenged the Hon’ble Court ruled the case in favour of the Petitioners.

27) Hence, while generalisation with regard to the incompetence of local bodies in implementing measures to protect the envionment should be avoided, the amendment should cause such action as would allow for integrated decision making that aid wholistic development in the country.

We do hope our views would be considered in the process of review of the proposed amendment.

Thanking you,

Yours sincerely,

Leo F. Saldanha
Environment Support Group

Along with:

Nimisha Kumar & Keerthi N.
National Academy of Legal Studies and Research (NALSAR)
University of Law


1. Departments of Environment and Forests of all State Governments and Union Territories
2. Regional Offices of Ministry of Environment and Forests
3. General Dissemination

ESG is an independent not-for-profit organisation that promotes the cause of environmental and social justice through research, documentation, advocacy, training and campaign support. We aim to support the rights of local communities and voiceless ecosystems in a responsible, progressive manner that keeps contextual complexities in mind.

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