GAJUBHA JADEJA JESAR VERSUS UNION OF INDIA & ORS

GAJUBHA JADEJA JESAR VERSUS UNION OF INDIA & ORS


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3116 OF 2020
GAJUBHA JADEJA JESAR .....APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. .....RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 3576 OF 2020
J U D G M E N T
HEMANT GUPTA, J.
1. This order shall dispose of Civil Appeal No. 3116 of 2020 arising out
of an application filed by the appellant1
 before the National Green
Tribunal2
 and Civil Appeal No. 3576 of 2020 filed by the Project
Proponent, both arising out of the same order passed by the Tribunal
on 12.2.2020.
2. The Project Proponent applied for Consent to Establish (CTE) Cold
Rolled Coils of stainless steel on 20.1.2018, the permission of which
was granted by Gujarat State Pollution Control Board. After the unit
was erected, Project Proponent was granted permission to operate
the unit on 6.2.2020. It is noted that the Project Proponent has
1 For short, the ‘Applicant’
2 For short, the ‘Tribunal’
1
invested Rs.1100 crores for the development of infrastructure and
had a turnover of approximately Rs.743 crores and paid Rs.286.17
crores as Goods and Services Tax till the Financial Year 2020-21.
The applicant also earned US Dollars 15.52 million foreign exchange
for the country.
3. An application was filed before the Tribunal on 20.7.2019 on the
ground that the Project Proponent has set up the unit in violation of
Environment Impact Assessment (EIA) notification dated 14.9.2006,
as such plant would fall within category 3(a) i.e., secondary
metallurgical industry for which a prior environmental clearance is
required. The relevant extract from the EIA notification reads thus:
3(a) Metallurgica
l industries
(ferrous &
non ferrous)
a) Primary
metallurgical
industry All
projects
b) Sponge iron
manufacturing
≥200 TPD
c) Secondary
metallurgical
processing
industry All
toxic and
heavy metal
producing
units ≥ 20,000
tonnes/annum
-
Sponge iron
manufacturing
<200 TPD
Secondary
metallurgical
processing
industry i) All
toxic and heavy
metal producing
units <20,000
tonnes/annum
ii) All other nontoxic secondary
metallurgical
processing
industries
>5000
tonnes/annum
General Condition
shall apply for
Sponge iron
manufacturing
Note:
(i) The recycling
industrial units
covered under HSM
Rules are
exempted.
(ii) In case of
secondary
metallurgical
processing
industrial units
only those projects
involving operation
of furnaces such as
induction and
electric are
furnace,
submerged are
furnace, cupola
and crucible
furnace with
capacity more than
30,000 tonnes per
annum (TPA) would
2
require
environmental
clearance
(iii) Plant/units
other than power
plants (given
against entry no. 1
(d) of the
schedule), based
on municipal solid
waste (non
hazardous) are
exempted).
4. The Tribunal set up a Joint Committee on 28.7.2019. The Committee
concluded that the applicability of the notification would be
determined by the Ministry of Environment, Forest and Climate
Change3
. The Ministry filed an affidavit on 21.11.2019, on the basis
of which the Tribunal took a prima facie view that the industry
requires an environmental clearance and thus stayed all activities of
the project as the Ministry sought time to file an additional
response. Later, an affidavit was filed by the Ministry that a Group of
Experts had been appointed on the issue. After the said report, the
Project Proponent filed an application for modification of the order
passed by the Tribunal on 21.11.2019 and the stay was thereafter
vacated on 16.1.2020.
5. The Expert Appraisal Committee4
 in its meeting held on 23-
24.12.2019 concluded that grace period of one year could be
granted where the industry has been established after CTE/CTO. The
Ministry filed an affidavit accepting the recommendation No. 3(iii) of
the EAC recommending one year grace period for the industry. The
3 For short, the ‘Ministry’
4 For short, the ‘EAC’
3
relevant part of the recommendation is reproduced as under:
“i. Project activity of CSPL falls under Category B of Schedule
3(a) Metallurgical Industries (ferrous and non-ferrous) of EIA
Notification, 2006.
ii. The committee also noted that there are a few issues which
may have diverse interpretations. The reports submitted by
the Committee formed by the Hon'ble NGT and the joint
inspection report by the Regional office of Bhopal and RO of
GPCB for Kutch have also left the final interpretation to the
MoEF&CC. It is also noted that the present unit has obtained
CTE from GPCB which is a Statutory authority. There may be
other similarly placed cases in the country. This shows that
there is a scope and need for further clarification in the
matter regarding certain issues so that there is no subjective
interpretation in future. These issues are (1) definition of
secondary metallurgy units for the purpose of EIA process, (2)
clarification about the types of furnaces under applicability of
MoEF&CC notification 2006 and (3) clarifying re rolling vs.
cold rolling in the context of Environment Clearance.
Therefore, for further smoothening the EC process for present
unit and proposals in future, the MoEF&CC may consider
issuing further clarifications.
iii. In order to address to instant and similar cases where such
re rolling/cold rolling units are established or operating with a
CTE/CTO from the concerned State Pollution Control Boards,
the Ministry may consider directing the State Pollution Control
Boards to get a list of all such cases and take further quick
actions so that they apply for EC and get covered by the EIA
notification 2006. Since, these units are established or
operating under the CTEs/CTOs obtained from a statutory
authority i.e. the respective Stale Pollution Control Boards, a
period of one year may be allowed for this recommended
conversion to EC. This will also ensure that the units remain in
operation for the allowed period and closures, unemployment
and related social issues/unrests are avoided. During this
period of one year, they will have to follow all the conditions
imposed under the CTE/CTO."
6. It is on the basis of the said recommendation that the Tribunal
passed the order dated 12.2.2020 that in view of the large number
of such mills operating on the strength of CTE/CTO, opportunity
4
should be provided to such units to fall within EC regime by granting
a period of at least one year to operate for the purpose.
7. The applicant challenged the time granted by the Tribunal on the
ground that the Tribunal has no jurisdiction to grant period for
obtaining Environmental Clearance as the EIA notification mandates
a prior Environmental Clearance. Since such consent was not
obtained before the setting up of the industry, the time limit of one
year is against the mandate of the statute. It was further argued
that under Section 21 of the National Green Tribunal Act, 20105
, the
Tribunal has the jurisdiction to set aside the Environmental
Clearance but has no jurisdiction for the grant of time for
Environmental Clearance.
8. The Project Proponent, aggrieved against the order passed by the
Tribunal, challenged the findings recorded that Environmental
Clearance is required. During the pendency of the appeal before this
Court, the Project Proponent was served with a closure notice on
25.6.2021 by the Gujarat State Pollution Control Board and the unit
was closed in terms of the said notice. This closure notice has been
assailed by way of I.A. No. 81563 of 2021.
9. While the appeals were pending before this Court, the Government
of India has published a notification on 20.7.2022 in terms of Section
3 of the Environment (Protection) Act, 19866
 to apply Terms of
Reference within one year followed by Environmental Clearance.
The notification reads thus:
5 For short, the ‘NGT Act’
6 For short, the ‘Environment Act’
5
“MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE
NOTIFICATION
New Delhi, the 20th July, 2022
S.O. 3250(E).—Whereas, the Hon’ble National Green
Tribunal vide its order, dated the 12th February, 2020, in
Original Application No. 55/2019 (WZ), (Gajubha Jesar Jadeja
vs Union of India &Ors.), has inter alia observed that Cold
Rolled Stainless Steel Manufacturing Industries require prior
environment clearance but, having regard to the fact that
there were a large number of such mills operating on the
strength of Consent to Establish (CTE) and Consent to
Operate (CTO), the Hon’ble Tribunal has held that opportunity
should be provided to such units to fall within the
Environment Clearance regime by granting a period of at
least one year to operate for the purpose;
And whereas, the Central Government, keeping in view
the impact caused due to the Covid19 pandemic has taken a
considered decision in line with the above said order of the
Hon’ble National Green Tribunal, so as to provide a window
period for such re-rolling or cold rolling units to obtain prior
Environmental Clearance;
And whereas, the Central Government is of the view
that steel re-rolling operations fall under the purview of the
secondary metallurgical processing industry and require
Environment Clearance as per item 3(a), relating to
Metallurgical Industries (Ferrous and Non-ferrous), of the
Schedule to the notification of the Government of India in the
erstwhile Ministry of Environment and Forest, published in the
Gazette of India, Extraordinary, Part II, Section 3, Sub-section
(ii), vide notification number S.O. 1533 (E), dated the 14th
September, 2006, mandating the requirement of prior
environmental clearance for the projects covered in its
Schedule (hereinafter referred to as the said notification),
wherein all non–toxic secondary metallurgical processing
units with capacities greater than 5000 tonnes/annum (TPA)
fall under category B;
Now, therefore, in exercise of the powers conferred by
section 3 of the Environment (Protection) Act, 1986 (29 of
1986), the Central Government hereby directs that all the
standalone re-rolling units or cold rolling units, which are in
existence and in operation as on the date of this notification,
with valid Consent to Establish (CTE) and Consent to Operate
(CTO) from the concerned State Pollution Control Board or the
6
Union territory Pollution Control Committee, as the case may
be, shall apply online for grant of Terms of Reference (ToR)
followed by Environment Clearance and the said units shall be
granted Standard Terms of Reference as per item 3(a) of the
said notification and shall be exempted from the requirement
of public consultation:
Provided that the application for the grant of ToR shall
be made within a period of one year from the date of this
notification.
2. This notification shall come in to force from the date
of its publication in the Official Gazette.
[F. No. IA-J-11013/8/2019-IA.II(I)]
Dr. SUJIT KUMAR BAJPAYEE, Jt. Secy”
10. With this background, the parties have addressed arguments on the
question of jurisdiction of the Tribunal to pass an order to operate a
unit without Environmental Clearance and the decision of closure of
the unit.
11. It may be stated that there are 1689 similar Re-Rolling/Cold ReRolling Steel Plants in the country out of which 403 plants are in the
State of Gujarat itself. All the units have been set up without
obtaining prior Environmental Clearance as there was an ambiguity
whether such Rolling Steel Mills are required to obtain prior
Environmental Clearance.
12. Ms. Anitha Shenoy, learned senior counsel for the applicant relies
upon judgments of this Court reported as Common Cause v. Union
of India & Ors.
7
, Hanuman Laxman Aroskar v. Union of India
8
and Alembic Pharmaceuticals Limited v. Rohit Prajapati &
7 (2017) 9 SCC 499
8 (2019) 15 SCC 401
7
Ors.
9
 to contend that prior Environmental Clearance is mandatory.
Since the unit has been set up in violation of the notification, the
Tribunal could not permit the unit to operate.
13. On the other hand, Mr. Shyam Divan, learned senior counsel for the
Project Proponent submitted that in terms of Section 21 of the NGT
Act, the Tribunal is competent to pass an order towards sustainable
development. It is contended that the order of the Tribunal granting
time of at least one year is based upon report of the
recommendation of the EAC. The EAC recommended that Re-Rolling
Units are established or operating with CTE/CTO from the concerned
State Pollution Control Boards, therefore, a period of one year may
be allowed for this recommended conversion to Environment
Clearance regime.
14. Mr. Divan also referred to an affidavit filed on behalf of the Ministry
referring to the report submitted by a high-level Expert Committee
under the Chairmanship of Dr. Indranil Chattoraj, Director, National
Metallurgical Laboratory, Jamshedpur. The Committee noted that
there is ambiguity in the EIA notification with respect to applicability
of Environmental Clearance for non-toxic secondary metallurgical
processing industry. Therefore, in order to bring out clarity, the
Ministry may amend schedule 3(a) of the EIA notification. The
relevant assertion from the affidavit reads thus:
“7. That the committee after conducting a series of meetings
submitted its report on 17/01/2022. The committee, interalia, has recommended that
9 (2020) 17 SCC 157
8
i. “That there is an ambiguity in the EIA notification, 2006
with respect to the applicability of EC for non-toxic secondary
metallurgical processing industry.
ii. Steel re-rolling mills [Hot rolling (or) Cold rolling] are one of
the processes in the secondary metallurgical processes and
attracts the provisions of the Environment Impact Assessment
(EIA) Notification, 2006.
iii. There are around 1689 standalone steel re-rolling mills
operating across the country without requisite Environment
Clearance and such unit may be brought under EC regime by
providing an adequate time frame.
iv. Revised threshold limits for primary and secondary
metallurgical industry prescribed under chapter 6 may be
considered by the Ministry for amending the schedule 3(a) of
EIA Notification, 2006 in order to bring out clarity on the
applicability of EC for difference secondary processes in
metallurgical industry.
That a copy of the report of the HLEC has been annexed as
ANNEXURE R/2.
8. That it is humbly submitted that Ministry is in the process
of bringing out suitable amendment in the EIA Notification
2006 in line with the recommendations made by the
Committee, in order to remove the ambiguity with respect to
the applicability of EC for non-toxic secondary metallurgical
processing industry.”
15. It is in pursuance of such report, the amendment was published on
20.7.2022.
16. Mr. Divan further relies upon an order passed by this Court in
Municipal Corporation of Greater Mumbai v. Ankita Sinha &
Ors.
10
 wherein the question as to whether the Tribunal has suo
moto jurisdiction to entertain proceedings under the NGT Act were
examined. The scope of jurisdiction of the Tribunal was also
considered.
10 2021 SCC OnLine SC 897
9
17. Mr. Divan also refers to an order passed by this Court reported as
Pahwa Plastics Pvt. Ltd. & Anr. v. Dastak NGO & Ors.
11
 wherein
the order passed by the Tribunal, holding that the manufacturing
units which do not have prior Environmental Clearance could not be
allowed to operate, was set aside.
18. We have heard learned counsel for the parties and find no error in
the order passed by the Tribunal. The order of the Tribunal is based
upon recommendation of the EAC which suggested that one year
time should be granted to the industry to comply with the EIA
notification dated 14.9.2006. The stand of the Ministry as well as the
Project Proponent is that there was ambiguity in the EIA notification
2006. 1689 units have come up in the country on the basis of CTE
and CTO regime. It is not a case of ambiguous interpretation in
respect of one or two units but the entire country was having the
same interpretation that Re-Rolling Steel Plants do not require a
prior Environmental Clearance. The ambiguity has been removed
only on 20.7.2022 when the notification has been amended, as
reproduced above. Since there was ambiguity earlier, the Tribunal
had granted time to the Project Proponent to comply with the
requirement of Environmental Clearance.
19. Such direction of the Tribunal is, in fact, arising out of scope of
powers conferred on the Tribunal under Section 21 of the NGT Act.
This Court in Ankita Sinha considering the suo moto powers of the
Tribunal held as under:
“98. The NGT Act, when read as a whole, gives much leeway
11 2022 SCC OnLine SC 362
10
to the NGT to go beyond a mere adjudicatory role. The
Parliament's intention is clearly discernible to create a
multifunctional body, with the capacity to provide redressal
for environmental exigencies. Accordingly, the principles of
environmental justice and environmental equity must be
explicitly acknowledged as pivotal threads of the NGT's fabric.
The NGT must be seen as a sui generis institution and
not unus multorum, and its special and exclusive role to
foster public interest in the area of environmental domain
delineated in the enactment of 2010 must necessarily receive
legal recognition of this Court.
xxx xxx xxx
102. In circumstances where adverse environmental impact
may be egregious, but the community affected is unable to
effectively get the machinery into action, a forum created
specifically to address such concerns should surely be
expected to move with expediency, and of its own accord.
The potentiality of disproportionate harm imposes a higher
obligation on authorities to preserve rights which may be
waylaid due to such restrictive access. It is also noteworthy
that the “global impacts of climate change will fall
disproportionately on minority and low-income
communities”.12 Thus, an affirmative role, beyond mere
adjudication at the instance of applicant, is certainly required
for serving the ends of environmental justice, as the statute
itself requires of the NGT. We cannot validate an argument
which furthers uncertainty to justify the role of a spectator, if
not inaction, and would most assuredly result in injustice.
103. The NGT, with the distinct role envisaged for it, can
hardly afford to remain a mute spectator when no-one knocks
on its door. The forum itself has correctly identified the need
for collective stratagem for addressing environmental
concerns. Such a society centric approach must be allowed to
work within the established safety valves of the principles of
natural justice and appeal to the Supreme Court. The handsoff mode for the NGT, when faced with exigencies requiring
immediate and effective response, would debilitate the forum
from discharging its responsibility and this must be ruled out
in the interest of justice.”
20. In Pahwa Plastics Pvt. Ltd., an establishment had been set up
12 Scott La Franchi, Surveying the Precautionary Principle's Ongoing Global Development : The
Evolution of an Emergent Environmental Management Tool, [32 B.C. Envtl. Aff. L. Rev. 679
(2005)
11
pursuant to CTE and CTO from the concerned statutory authority.
The establishment applied for ex-post facto Environmental
Clearance. In these circumstances, this Court held that ex-post
Environmental Clearance should not ordinarily be granted but it
cannot be declined with pedantic rigidity, regardless of the
consequences of stopping the operation. Hence, the order of the
Tribunal to close the units was found to be erroneous. The order of
closure of establishments for the lack of Environmental Clearance
was set aside by this Court, inter alia, for the reason that whether
the unit contributing to the economy and providing livelihood to
hundreds of people set up in pursuance to requisite approvals of the
concerned statutory authorities should be closed down for the
technical irregularity or want of prior Environmental Clearance. This
Court held as under:
“54. The manufacturing units of the Appellants appoint about
8,000 employees and have a huge annual turnover. An
establishment contributing to the economy of the country and
providing livelihood ought not to be closed down only on the
ground of the technical irregularity of not obtaining prior
Environmental Clearance irrespective of whether or not the
unit actually causes pollution.
xx xx xx
56. As held by this Court in Electrosteel Steels
Limited (supra) ex post facto Environmental Clearance should
not ordinarily be granted, and certainly not for the asking. At
the same time ex post facto clearances and/or approvals
and/or removal of technical irregularities in terms of a
Notification under the EP Act cannot be declined with
pedantic rigidity, oblivious of the consequences of stopping
the operation of mines, running factories and plants.
57. The 1986 Act does not prohibit ex post
12
facto Environmental Clearance. Grant of ex post facto EC in
accordance with law, in strict compliance with Rules,
Regulations, Notifications and/or applicable orders, in
appropriate cases, where the projects are in compliance with,
or can be made to comply with environment norms, is in our
view not impermissible. The Court cannot be oblivious to the
economy or the need to protect the livelihood of hundreds of
employees and others employed in the project and others
dependent on the project, if such projects comply with
environmental norms.
xx xx xx
60. Even though this Court deprecated ex post facto
clearances, in Alembic Pharmaceuticals Ltd. (supra), this
Court did not direct closure of the units concerned but
explored measures to control the damage caused by the
industrial units. This Court held:—
“However, since the expansion has been undertaken
and the industry has been functioning, we do not deem
it appropriate to order closure of the entire plant as
directed by the High Court.”
xx xx xx
63. Ex post facto environmental clearance should not be
granted routinely, but in exceptional circumstances taking
into account all relevant environmental factors. Where the
adverse consequences of denial of ex post facto approval
outweigh the consequences of regularization of operations by
grant of ex post facto approval, and the establishment
concerned otherwise conforms to the requisite pollution
norms, ex post facto approval should be given in accordance
with law, in strict conformity with the applicable Rules,
Regulations and/or Notifications. The deviant industry may be
penalised by an imposition of heavy penalty on the principle
of ‘polluter pays’ and the cost of restoration of environment
may be recovered from it.
64. The question in this case is, whether a unit contributing
to the economy of the country and providing livelihood to
hundreds of people, which has been set up pursuant to
requisite approvals from the concerned statutory authorities,
and has applied for ex post facto EC, should be closed down
for the technical irregularity of want of prior environmental
clearance, pending the issuance of EC, even though it may
13
not cause pollution and/or may be found to comply with the
required norms. The answer to the aforesaid question has to
be in the negative, more so when the HSPCB was itself under
the misconception that no environment clearance was
required for the units in question. HSPCB has in its counter
affidavit before the NGT clearly stated that a decision was
taken to regularize units such as the Apcolite Yamuna Nagar
and Pahwa Yamuna Nagar Units, since requisite approvals had
been granted to those units, by the concerned authorities on
the misconception that no EC was required.
xx xx xx
66. Ex post facto EC should not ordinarily be granted, and
certainly not for the asking. At the same time ex post
facto clearances and/or approvals cannot be declined with
pedantic rigidity, regardless of the consequences of stopping
the operations. This Court is of the view that the NGT erred in
law in directing that the units cannot be allowed to function
till compliance of the statutory mandate.”
21. The judgment in Common Cause referred to by Ms. Shenoy is of no
help to support her arguments as the question was whether illegal
mining can be said to be within the leased area for mining. It was
held that illegal mining takes within its fold excess extraction of a
mineral over the permissible limit even within the mining lease area
under the Mines and Minerals (Development and Regulation) Act,
1957.
22. In Hanuman Laxman Aroskar, this Court held that the EIA
notification of the year 2006 demonstrates an increasing awareness
of the complexities of the environment and the heightened scrutiny
required to ensure its continued sustenance, for today and for
generations to come. It embodies a commitment to sustainable
development. It was held as under:
14
“56. The 2006 Notification embodies the notion that the
development agenda of the nation must be carried out in
compliance with norms stipulated for the protection of the
environment and its complexities. It serves as a balance
between development and protection of the environment:
there is no trade-off between the two. The protection of the
environment is an essential facet of development. It cannot
be reduced to a technical formula. The notification
demonstrates an increasing awareness of the complexities of
the environment and the heightened scrutiny required to
ensure its continued sustenance, for today and for
generations to come. It embodies a commitment to
sustainable development. In laying down a detailed procedure
for the grant of an EC, the 2006 Notification attempts to
bridge the perceived gap between the environment and
development.”
23. In Alembic Pharmaceuticals Limited, the validity of circular
dated 14.5.2002 was in question. This Court found that such circular
is contrary to the EIA notification of 1994. It was decided by the
Ministry that the industrial units which had gone into production
without obtaining an EC would have to apply for and obtain an expost facto EC. The said judgment has no applicability to the facts of
the present case where the Ministry itself is of the opinion that there
was an ambiguity in the EIA notification of 2006. Such ambiguity has
been removed only when the EIA notification was subsequently
amended on 20.7.2022. Therefore, the judgments referred to by Ms.
Shenoy are not applicable to the facts of the present case.
24. We are constrained to point out that out of 1689 units in the
country, the applicant has chosen the Project Proponent as it
appears to be a motivated petition to target the Project Proponent
though the Cold Steel Rolling Mills in the country were operating
under the same regime. Not only the Project Proponent, but the
15
country also has suffered immensely on account of closure of the
unit which was export oriented unit. It may be noticed that the
Gujarat State Pollution Control Board has chosen the Project
Proponent to serve with a closure notice on 25.6.2021. The unit is
lying closed since then. In view of the amendment in the EIA
notification dated 20.7.2022, the unit has time to seek
Environmental Clearance in terms of the time line mentioned in the
notification. Therefore, the order of closure of the unit cannot be
sustained.
25. In view of the said fact, Civil Appeal No. 3116 of 2020 is dismissed.
I.A. No. 81563 of 2021 in Civil Appeal No. 3576 of 2020 challenging
the closure notice issued by Gujarat State Pollution Control Board
dated 25.6.2021 is allowed and the closure notice is quashed. The
Civil Appeal No. 3576 of 2020 stands disposed of in the above
terms.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(VIKRAM NATH)
NEW DELHI;
AUGUST 10, 2022.
16

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