D. SWAMY Versus KARNATAKA STATE POLLUTION CONTROL BOARD AND ORS

D. SWAMY Versus KARNATAKA STATE POLLUTION CONTROL BOARD AND ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

1

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3132 OF 2018

D. SWAMY … Appellant

Versus

KARNATAKA STATE POLLUTION CONTROL

BOARD AND ORS. … Respondents

J U D G M E N T

Indira Banerjee, J.

This appeal, under Section 22 of the National Green Tribunal

Act 2010, is against a final order dated 10th May 2017 passed by

the National Green Tribunal, Southern Zone, Chennai, dismissing

the Application No.169 of 2016 (SZ) filed by the Appellant under

Section 18(1) read with Section 14 of the National Green Tribunal

Act 2010, whereby the Appellant had prayed for a direction for

closure of the Common Bio-Medical Waste Treatment Facility run

by the Respondent No.3, on the ground of alleged non-compliance

of the provisions of the Environmental Impact Assessment

Notification 2006, hereinafter referred to as “the 2006 EIA

2

Notification” as amended on 17th April 2015.

2. In the meanwhile, by a notification being S.O. 327 (E) dated

10th April 2001, published in the Gazette of India on 12th April

2001, the Central Government has delegated the powers vested in

it under the Environment (Protection) Act, 1986 (EP Act) to the

Chairpersons of the respective State Pollution Control

Boards/Committees to issue directions to any industry or any local

or other authority to prevent violation of the Rules.

3. On or about 25th February 2012, the Respondent No.3

applied to the Respondent No.1, Karnataka State Pollution Control

Board (hereinafter referred to as “KSPCB”) for consent to establish

a Common Bio-Medical Waste Treatment Facility over the land

bearing Survey No. 82 and 38/2 at Gujjegowdanapura village,

Jayapura Hobli, Mysore Taluk and District.

4. By a letter dated 24th November 2012, the Respondent No.1

KSPCB accorded consent to the Respondent No.3 to establish the

Common Bio-Medical Waste Treatment Facility under the provisions

of the Water (Prevention and Control of Pollution) Act, 1974 and

the Air (Prevention and Control of Pollution) Act, 1981 for

collection, reception, transportation, treatment and disposal of BioMedical Waste. The said consent was valid for a period of five

years.

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5. It appears that M/s Shree Consultant who had been

operating a Common Bio-Medical Waste Treatment Facility at

Survey No.25 at Mysore and had been collecting Bio-Medical Waste

from four districts could not collect Bio-Medical Waste from the

district of Hassan because of the Common Bio-Medical Waste

Treatment Facility established by the Respondent No.3.

6. M/s Shree Consultant filed appeals bearing Nos.48 and 49 of

2012 before the Karnataka State Environment Appellate Authority,

Bangalore challenging the consent granted to the Respondent

No.3 to establish the Common Bio-Medical Waste Treatment

Facility. The Karnataka State Environment Appellate Authority,

Bangalore granted an interim stay of the order granting consent to

the Respondent No.3 to establish the Common Bio-Medical Waste

Treatment Facility. Ultimately however, the appeal was dismissed

by a common judgment and order dated 20th April 2013.

7. M/s Shree Consultant filed Appeal Nos. 46-47 of 2013 before

the National Green Tribunal, Southern Zone, Chennai against the

common judgment and order dated 20th April 2013 passed by the

Karnataka State Environment Appellate Authority, Bangalore in

Appeal Nos.48-49 of 2012.

8. By a judgment and order dated 28th November 2013, the

Principal Bench of the National Green Tribunal at New Delhi held

that Bio-Medical Waste Treatment Plants were required to obtain

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an Environmental Clearance (EC) from the Ministry of Environment

and Forests, Government of India, hereinafter referred to as

“MoEF&CC”, in terms of Entry 7(d) of the Notification dated 14th

September 2006. The National Green Tribunal had also directed

the parties who had been running Common Bio-Medical Waste

Treatment Facilities to apply to the MoEF&CC for EC.

9. On 26th February 2014, the Central Pollution Control Board

issued guidelines for Common Bio-Medical Waste Treatment

Facilities. On 14th July 2014, the National Green Tribunal, Southern

Zone, Chennai passed a judgment and order dismissing Appeal

Nos. 46-47 of 2013 filed by M/s Shree Consultant and held that the

Respondent No.1 had rightly given consent to the Respondent No.3

for establishing its Common Bio-Medical Waste Treatment Facility.

10. On 4th March 2015, the Respondent No.3 applied for grant of

consent to operate the Common Bio-Medical Waste Facility under

the provisions of the relevant Water Pollution and Air Pollution

Acts.

11. On 17th April 2015, MoEF&CC amended the Notification

dated 14th September 2006, in view of the Judgment dated 28th

November 2013 passed by the National Green Tribunal, Principal

Bench, New Delhi in Appeal No. 63 of 2012. By the amendment

Entry 7(da) was inserted after Entry 7(d) in the Schedule. Entry

7(da) provided that Common Bio-Medical Waste Treatment

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Facilities would be required to obtain EC from the Ministry of

Environment and Forest.

12. It appears that on 13th July 2015, the villagers of the

Gujjegowdanapura, Manadalli, Harohalli, Chunchunarayahundi,

Kallahalli, Arinakere, Mahadevpura at Jayapura Hobli, Mysore made

a representation to the Respondent No.1 seeking an order banning

the establishment of Common Bio-Medical Waste Treatment

Facility by the Respondent No.3.

13. Thereafter, the Respondent No.1 issued notices to the

Common Bio-Medical Waste Treatment Facility of the Respondent

No.3, calling upon it to submit a report of compliance of pollution

norms.

14. On 1st December 2015, the State Level Environment Impact

Assessment Authority, Karnataka (SEIAA) issued directions to the

Respondent No.1 under Section 5 of the Environment (Protection)

Act, 1986 to issue consent for operation of the Common BioMedical Waste Treatment Facility and other projects attracting the

2006 EIA Notification and the amendments thereto.

15. By its letter dated 28th December 2015, the Respondent No.1

instructed all the concerned officers of the KSPCB that application

for consent to establish or operate projects attracting the 2006 EIA

Notification and amendments thereto were to be received by the

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KSPCB only if EC was attached to the application.

16. On 19th January 2016, the Respondent No.3 resubmitted its

application for consent to operate the Common Bio-Medical Waste

Treatment Facility, which had earlier been returned by the

Respondent No.1. On 11th February 2016, the Respondent No.1

granted the Respondent No.3 consent to operate its Common BioMedical Waste Treatment Facility at Gujjegowdanapura village,

Jayapura Hobli in Mysore district. The said consent was valid for

the period from 1st July 2015 to 30th June 2016.

17. The Appellant filed Appeal No.3 of 2016 before the

Karnataka State Environment Appellate Authority under Section 28

of the Water (Prevention and Control of Pollution) Act, 1974

challenging the consent to the Respondent No.3 to operate the

Common Bio-Medical Waste Treatment Facility. Very soon

thereafter the MoEF&CC revised the Bio-Medical Waste

(Management and Handling) Rules 1998 under Section 6, 8 and 25

of the EP Act.

18. The Appeal No.3 of 2016 filed by the Appellant before the

Karnataka State Environment Appellate Authority, against the

consent order dated 11th February 2016 passed by the Respondent

No.1 came to be withdrawn by the Appellant because the said

appeal had become infructuous in view of the expiration of the

period of consent to operate granted to the Respondent No.3 on

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30th June 2016.

19. By an order dated 17th August 2016, the National Green

Tribunal, Southern Zone, Chennai directed that the application for

renewal of consent to operate, pending before the Respondent

No.1 might be processed in accordance with law subject to the

final order passed by the Tribunal.

20. Pursuant to the aforesaid order dated 17th August 2016, the

Respondent No.1 renewed the consent order to operate the

Common Bio-Medical Waste Treatment Facility in favour of the

Respondent No.3 which was valid for the period from 17th August

2016 to 30th June 2021.

21. In exercise of power under Section 3(1) and Section 3(2)(v)

of the EP Act read with Rule 5(3)(d) of the EP Rules, the Central

Government issued a Notification being S.O. 804(E) dated 14th

March 2017 which provides for grant of ex post facto EC for project

proponents who had commenced, continued or completed a

project without obtaining EC under the EP Act/EP Rules or the

Environmental Impact Notification issued thereunder. Paragraphs

3, 4 and 5 of the said notification, read as hereunder:

“(3) In cases of violation, action will be taken against the

project proponent by the respective State or State Pollution

Control Board under the provisions of section 19 of the

Environment (Protection) Act, 1986 and further, no consent

to operate or occupancy certificate will be issued till the

project is granted the environmental clearance.

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(4) The cases of violation will be appraised by respective

sector Expert Appraisal Committees constituted under subsection (3) of Section 3 of the Environment (Protection) Act,

1986 with a view to assess that the project has been

constructed at a site which under prevailing laws is

permissible and expansion has been done which can be run

sustainably under compliance of environmental norms with

adequate environmental safeguards; and in case, where the

finding of the Expert Appraisal Committee is negative,

closure of the project will be recommended along with other

actions under the law.

(5) In case, where the findings of the Expert Appraisal

Committee on point at sub-para(4) above are affirmative, the

projects under this category will be prescribed the

appropriate Terms of Reference for undertaking Environment

Impact Assessment and preparation of Environment

Management Plan. Further, the Expert Appraisal Committee

will prescribe a specific Terms of Reference for the project on

assessment of ecological damage, remediation plan and

natural and community resource augmentation plan and it

shall be prepared as an independent chapter in the

environment impact assessment report by the accredited

consultants. The collection and analysis of data for

assessment of ecological damage, preparation of

remediation plan and natural and community resource

augmentation plan shall be done by an environmental

laboratory duly notified under Environment (Protection) Act,

1986, or a environmental laboratory accredited by National

Accreditation Board for Testing and Calibration Laboratories,

or a laboratory of a Council of Scientific and Industrial

Research institution working in the field of environment.”

22. The Notification of 2017 is a valid statutory notification

issued by the Central Government in exercise of power under

Sections 3(1) and 3(2)(v) of the EP Act read with Rule 5(3)(d) of the

EP Rules in the same manner as the EIA Notification dated 27th

January 1994 and the Notification dated 14th September 2006.

23. Section 21 of the General Clauses Act, 1897 provides that

where any Central Act or Regulations confer a power to issue

notifications, orders, rules or bye-laws, that power includes the

power, exercisable in the like manner, and subject to like sanction

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and conditions, if any, to add to, amend, vary or rescind any

notification, order, rule or bye-law so issued. The authority, which

had the power to issue Notifications dated 27th January 1994 and

14th September 2006 undoubtedly had, and still has the power to

rescind or modify or amend those notifications in like manner. As

held by this Court in Shree Sidhbali Steels Ltd. & Others v.

State of Uttar Pradesh & Others

1

, power under Section 21 of

the General Clauses Act to amend, vary or rescind notifications,

orders, rules or bye-laws can be exercised from time to time

having regard to the exigency.

24. Puducherry Environment Protection Association filed a Writ

Petition being W.P. No.11189 of 2017 in the High Court of Madras

assailing the said notification dated 14th March 2017. By a

judgment and order dated 13th October 2017, a Division Bench of

the High Court refused to interfere with the said notification,

holding that the impugned notification did not compromise with

the need to preserve environmental purity.

25. The MoEF&CC issued a draft Notification dated 23rd March

2020 which was duly published in the Gazette of India

Extraordinary Part II. The Notification was proposed to be issued in

exercise of powers conferred by subsection (1) and clause (v) of

sub-section (2) of Section 3 of the EP Act for dealing with cases of

violation of the notification with regard to EC. It was proposed that

1 (2011) 3 SCC 193

10

cases of violation would be appraised by the Appraisal Committee

with a view to assess whether the project had been constructed or

operated at a site which was permissible under prevailing laws and

could be run sustainably on compliance of environmental norms

with adequate environmental safeguards. Closure was to be

recommended if the findings of the Appraisal Committee were in

the negative. If the Appraisal Committee found that such unit had

been running sustainably upon compliance of environmental

norms with adequate environment safeguards, the unit would be

prescribed appropriate Terms of Reference (TOR) after which the

procedure for grant of EC would follow.

26. The appeal has been opposed by the KSPCB. On behalf of

the KSPCB, it is submitted that the appeal is liable to be dismissed

on the ground of delay of 62 days in filing the appeal. Reasons for

the delay, it is submitted, does not make out sufficient cause for

the inordinate delay. It is next contented that there is no

substantial question of law of general importance involved in this

appeal. The appeal is liable to be dismissed on that ground. It is

also contended that the appeal suffers from suppression of facts.

On behalf of KSPCB, it is contended that the 2015 amendment

dated 17th April 2015 to the EIA Notification is prospective in the

light of the law laid down in Narmada Bachao Andolan v. Union

of India

2

. The Respondent No.3 had applied to the KSPCB for

consent to operate before the EIA Notification dated 17th April

2 (2000) 10 SCC 664

11

2015, for no prior ECl was required for projects which came to

existence after 14th September 2006 but before 17th April 2015.

27. On 21st December 2016, the Central Pollution Control Board,

MoEF&CC, Government of India issued revised guidelines for

Common Bio-Medical Wastes Treatment and Disposal Facility.

28. By final judgment and order dated 10th May 2017, which is

impugned in this appeal, the National Green Tribunal has

dismissed the appeal filed by the Appellant, with the observation

that the Respondent No.3 could not be directed to be closed down

for want of EC.

29. By an Office Memorandum, being F. No. 22-21/2020-1A III,

dated 7th July 2021, the MoEF&CC issued Standard Operating

Procedure (SoP) for identification and handling of violation cases

under 2006 EIA Notification.

30. The said Office Memorandum, inter alia, reads:

“The Ministry had issued a notification number S.O.804(E),

dated the 14

th

 March, 2017 detailing the process for grant of

Terms of Reference and Environmental Clearance in respect

of projects or activities which have started the work on site

and/or expanded the production beyond the limit of Prior EC

or changed the product mix without obtaining Prior EC under

the EIA Notification, 2006.

2. This Notification was applicable for six months from the

date of publication i.e. 14.03.2017 to 13.09.2017 and further

based on court direction from 14.03.2018 to 13.04.2018.

3. Hon’ble NGT in Original Application No.287 of 2020 in the

matter of Dastak N.G.O. v Synochem Organics Pvt. Ltd. &

Ors. and in applications pertaining to same subject matter in

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Original Application No. 298 of 2020 in Vineet Nagar v

Central Ground Water Authority & Ors., vide order dated

03.06.2021 held that “(...) for past violations, the concerned

authorities are free to take appropriate action in accordance

with polluter pays principle, following due process”.

4. Further, the Hon’ble National Green Tribunal in O.A. No.

34/2020 WZ in the matter of Tanaji B. Gambhire vs. Chief

Secretary, Government of Maharashtra and Ors., vide order

dated 24.05.2021 has directed that”.... a proper SoP be

laid down for grant of EC in such cases so as to

address the gaps in binding law and practice being

currently followed. The MoEF may also consider

circulating such SoP to all SEIAAs in the country”.

5. Therefore, in compliance to the directions of the Hon’ble

NGT a Standard Operating Procedure (SoP) for dealing with

violation cases is required to be drawn. The Ministry is also

seized of different categories of ‘violation’ cases which have

been pending for want of an approved structural/procedural

framework based on ‘Polluter Pays Principle’ and ‘Principle of

Proportionality’. It is undoubtedly important that action

under statutory provisions is taken against the

defaulters/violators and a decision on the closure of the

project or activity or otherwise is taken expeditiously.

6. In the light of the above directions of the Hon’ble Tribunal

and the issues involved, the matter has accordingly been

examined in detail in the Ministry. A detailed SoP has

accordingly been framed and is outlined herein. The SoP is

also guided by the observations/decisions of the Hon’ble

Courts wherein principles of proportionality and polluters pay

have been outlined.”

31. The SoP formulated by the said Office Memorandum dated

7

th July 2021 refers to and gives effect to various judicial

pronouncements including the judgment of this Court in Alembic

Pharmaceuticals Ltd. v. Rohit Prajapati & Others

3

.

32. In terms of the SoP, the proposal for grant of EC in cases of

violation are to be considered on merits, with prospective effect,

applying principles of proportionality and the principle that the

3 2020 SCC OnLine SC 347

13

polluter pays and is liable for costs of remedial measures.

33. A Public Interest Litigation being W.P. (MD) No. 11757 of

2021 (Fatima v. Union of India) was filed before the Madurai

Bench of the Madras High Court challenging the said Memorandum

dated 7th July 2021. By an interim order dated 15th July 2021 a

Division Bench of the Madras High Court admitted the Writ Petition

and stayed the said memorandum.

34. The Madurai Bench of the Madras High Court observed and

held:-

“This writ petition has been filed as a public interest

litigation challenging the validity of the office memorandum

dated 07.07.2021, issued by the respondent.

2. We have heard Mr. A. Yogeshwaran, learned counsel

appearing for the writ petitioner and Mr.L.Victoria Gowri,

learned Assistant Solicitor General of India, accepts notice

for the respondent.

 3. The impugned office memorandum is challenged as being

wholly without jurisdiction, contrary to the Environment

Impact Assessment Notification, 2006, ultra vires the powers

of the respondent under the Environment (Protection) Act,

1986 and violative of the various principles enunciated by

the Hon'ble Supreme Court, while interpreting Article 21 and

Article 48-A of the Constitution of India.

4. Further, it is submitted that the impugned notification is in

gross violation of the undertaking given before the Hon'ble

Full Bench of this Court in W.P.No.11189 of 2017, wherein,

the Court took note of the submissions made on behalf of

the Government of India, that the notification impugned

therein is only a one-time measure. Further, it is submitted

that the respondent failed to see that concept of ex-post

facto approval is alien to environment jurisprudence and it is

anathema to the Environment Impact Assessment

Notification, 2006.

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5. Further, it is submitted that the impugned notification is in

gross violation of the judgment of the Hon'ble Supreme

Court in the case of Alembic Pharmaceuticals Ltd. v Rohit

Prajapati, 2020 SCC Online SC 347 and the orders passed by

the National Green Tribunal, Principal Bench, New Delhi, in

the case of S.P.Muthuraman v Union of India & Another, 2015

SCC Online NGT 169.

6. Identical grounds were considered by us in a challenge to

an office memorandum dated 19.02.2021, which provided a

procedure for granting post facto clearance under Coastal

Regulation Zone (CRZ) Notification 2011, on the ground that

despite no such provisions in the notification and being

contrary to the earlier judgments and undertaking. The said

writ petition in W.P(MD).No.8866 of 2021 was admitted and

by order dated 30.04.2021, the said office memorandum

dated 19.02.2021 has been stayed.

7. The core issue in this writ petition is whether the

Government of India could have issued the office

memorandum and brought about the Standard Operating

Procedure for dealing with violators, who failed to comply

with the mandatory condition of obtaining prior environment

clearance under the Environment Impact Assessment

Notification 2006, read with the provisions of Environment

(Protection) Act, 1986. This issue was considered by the

Hon'ble Supreme Court in Alembic Pharmaceuticals Ltd

(supra), and it was held that such office memorandum in

the nature of circular is without jurisdiction. The operative

portion of the judgment reads as follows:

 "...What is sought to be achieved by the administrative

circular dated 14 May 2002 is contrary to the statutory

notification dated 27 January 1994. The circular dated 14

May 2002 does not stipulate how the detrimental effects

on the environment would be taken care of if the project

proponent is granted an ex post facto EC. The EIA

notification of 1994 mandates a prior environmental

clearance. The circular substantially amends or alters the

application of the EIA notification of 1994. The mandate of

not commencing a new project or expanding or

modernising an existing one unless an environmental

clearance has been obtained stands diluted and is

rendered ineffective by the issuance of the administrative

circular dated 14 May 2002. This discussion leads us to

the conclusion that the administrative circular is not a

measure protected by Section 3. Hence there was no

jurisdictional bar on the NGT to enquire into its legitimacy

or vires. Moreover, the administrative circular is contrary

to the EIA Notification 1994 which has a statutory

character. The circular is unsustainable in law."

15

8. Despite the above decision, once again the Government of

India, Ministry of Environment, Forest and Climate Change

have chosen to adopt the route of issuing the office

memorandum and virtually setting at naught the provisions

of the Environment Impact Assessment Notification and the

Environment (Protection) Act.

9. Before the Hon'ble First Bench, a public interest litigation

was filed by the Puducherry Environment Protection

Association, challenging the notification dated 14.03.2017,

on identical grounds and the Hon'ble First Bench by

judgment dated 13.10.2017, recorded the submissions of the

learned Assistant Solicitor General of India that the said

notification was a one-time measure and accordingly,

disposed of the writ petition.

10. Once again, the Ministry of Environment, Forest and

Climate Change have issued the impugned office

memorandum. Thus, from what we have noted above, we

are of the clear view that the petitioner has made out a

prima facie case for entertaining the writ petition.

Accordingly, the writ petition is admitted and there shall be

an order of interim stay.”

35. It is true that in the case of Puducherry Environment

Protection Association v. Union of India

4

, the Division Bench

of Madras High Court took note of and recorded the submission

made on behalf of the Union of India that the relaxation was a one

time relaxation. In view of such submission, this Court held that a

one time relaxation was permissible.

36. It is, however, well settled that words and phrases and/or

sentences in a judgment cannot be read in the manner of a

statute, and that too out of context. The observation of the

Division Bench that a one time relaxation was permissible, is not to

be construed as a finding that relaxation cannot be made more

than once. If power to amend or modify or relax a notification

4 2017 SCC OnLine Mad 7056

16

and/or order exists, the notification and/or order may be amended

and/or modified as many times, as may be necessary. A statement

made by counsel in Court would not prevent the authority

concerned from making amendments and/or modifications

provided such amendments and/or modifications were as per the

procedure prescribed by law.

37. The Division Bench of Madras High Court fell in error in

staying the said office memorandum, by relying on observations

made by this Court in Alembic Pharmaceuticals Ltd. (supra), in

the context of a circular which was contrary to the statutory

Environment Impact Notification of 1994. The attention of the High

Court was perhaps not drawn to the fact that the notification of 7th

July 2021 was in pursuance of the statutory notification of 2017

which was valid. The judgment of this Court in Alembic

Pharmaceuticals Ltd. (supra), was clearly distinguishable and

could have no application to the office memorandum dated 7th July

2021 which was issued pursuant to the notification dated 14th

March 2017.

38. In Electrosteel Steels Limited v. Union of India

5

, this

Court held:-

“82. The question is whether an establishment contributing to the economy of the country and providing

livelihood to hundreds of people should be closed

down for the technical irregularity of shifting its site

without prior environmental clearance, without opportunity to the establishment to regularize its opera5 2021 SCC OnLine SC 1247

17

tion by obtaining the requisite clearances and permissions, even though the establishment may not otherwise be violating pollution laws, or the pollution, if

any, can conveniently and effectively be checked. The

answer has to be in the negative.

83. The Central Government is well within the scope of its

powers under Section 3 of the 1986 Act to issue directions to

control and/or prevent pollution including directions for prior

Environmental Clearance before a project is commenced.

Such prior Environmental Clearance is necessarily granted

upon examining the impact of the project on the environment. ExPost 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

Notifications under the 1986 Act cannot be declined

with pedantic rigidity, oblivious of the consequences

of stopping the operation of a running steel plant.

84. The 1986 Act does not prohibit ex post facto Environmental Clearance. Some relaxations and even 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 over 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.

***

88. The Notification being SO 804(E) dated 14

th

 March, 2017

was not an issue in Alembic Pharmaceuticals (supra). This

Court was examining the propriety and/or legality of a 2002

circular which was inconsistent with the EIA Notification

dated 27

th

 January, 1994, which was statutory. Ex post facto

environmental clearance should not however be granted routinely, but in exceptional circumstances taking into account

all relevant environmental factors. Where the adverse consequences of ex post facto approval outweigh the consequences of regularization of operation of an industry by

grant of ex post facto approval and the industry or 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. Ex post facto approval

should not be withheld only as a penal measure. 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.

***

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96. The appeals are allowed. The impugned order is set

aside. The Respondent No. 1 shall take a decision on

the application of the Appellant for revised EC in accordance with law, within three months from date.

Pending such decision, the operation of the steel

plant shall not be interfered with on the ground of

want of EC, FC, CTE or CTO.”

39. The proposition of law enunciated/re-enunciated by this

Court in Electrosteel Steels Limited (supra) was reiterated in

Pahwa Plastics Pvt. Ltd. and Anr. v. Dastak NGO and Ors.

6

40. As held by this Court in Electrosteel Steels Limited

(supra) 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 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.

41. The EP Act does not prohibit ex post 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

6 2022 SCC Online SC 362

19

others dependent on the project, if such projects comply with

environmental norms.

42. In Lafarge Umiam Mining Private Limited v. Union of

India

7

, a three-Judge Bench of this Court held:-

“119. The time has come for us to apply the constitutional

“doctrine of proportionality” to the matters concerning

environment as a part of the process of judicial review in

contradistinction to merit review. It cannot be gainsaid that

utilization of the environment and its natural resources has

to be in a way that is consistent with principles of

sustainable development and intergenerational equity, but

balancing of these equities may entail policy choices. In the

circumstances, barring exceptions, decisions relating to

utilisation of natural resources have to be tested on the anvil

of the well-recognized principles of judicial review. Have all

the relevant factors been taken into account? Have any

extraneous factors influenced the decision? Is the decision

strictly in accordance with the legislative policy underlying

the law (if any) that governs the field? Is the decision

consistent with the principles of sustainable development in

the sense that has the decisionmaker taken into account the

said principle and, on the basis of relevant considerations,

arrived at a balanced decision? Thus, the Court should

review the decision-making process to ensure that the

decision of MoEF is fair and fully informed, based on the

correct principles, and free from any bias or restraint. Once

this is ensured, then the doctrine of “margin of appreciation”

in favour of the decision-maker would come into play.”

43. In Alembic Pharmaceuticals Ltd.(supra), this Court

observed:-

“27. The concept of an ex post facto EC is in derogation of

the fundamental principles of environmental jurisprudence

and is an anathema to the EIA notification dated 27 January

1994. It is, as the judgment in Common Cause holds,

detrimental to the environment and could lead to irreparable

degradation. The reason why a retrospective EC or an ex

post facto clearance is alien to environmental jurisprudence

is that before the issuance of an EC, the statutory

notification warrants a careful application of mind, besides a

study into the likely consequences of a proposed activity on

7 (2011) 7 SCC 338

20

the environment. An EC can be issued only after various

stages of the decision making process have been completed.

Requirements such as conducting a public hearing,

screening, scoping and appraisal are components of the

decision-making process which ensure that the likely impacts

of the industrial activity or the expansion of an existing

industrial activity are considered in the decision-making

calculus. Allowing for an ex post facto clearance would

essentially condone the operation of industrial activities

without the grant of an EC. In the absence of an EC, there

would be no conditions that would safeguard the

environment. Moreover, if the EC was to be ultimately

refused, irreparable harm would have been caused to the

environment. In either view of the matter, environment law

cannot countenance the notion of an ex post facto

clearance. This would be contrary to both the precautionary

principle as well as the need for sustainable development.”

44. 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.”

45. The Notification being SO. 804(E) dated 14th March 2017 was

not in issue in Alembic Pharmaceuticals Ltd. (supra). In

Alembic Pharmaceuticals Ltd. (supra) this Court was examining

the propriety and/or legality of a 2002 circular which was

inconsistent with the EIA Notification dated 27th January 1994,

which was statutory. The EIA Notification dated 27th January 1994

has, as stated above, been superseded by the Notification dated

21

14th September 2006.

46. There can be no doubt that the need to comply with the

requirement to obtain EC is non-negotiable. A unit can be set up or

allowed to expand subject to compliance of the requisite

environmental norms. EC is granted on condition of the suitability

of the site to set up the unit, from the environmental angle, and

also existence of necessary infrastructural facilities and equipment

for compliance of environmental norms. To protect future

generations and to ensure sustainable development, it is

imperative that pollution laws be strictly enforced. Under no

circumstances can industries, which pollute, be allowed to operate

unchecked and degrade the environment.

47. Ex post facto environmental clearance should ordinarily 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. In a given

case, 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.

22

48. It is reiterated that the EP Act does not prohibit ex post facto

EC. Some relaxations and even 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 environment norms, is not

impermissible. As observed by this Court in Electrosteel Steels

Limited (supra), this Court cannot be oblivious to the economy or

the need to protect the livelihood of hundreds of employees and

others employed in the units and dependent on the units for their

survival.

49. 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.

50. In our considered view, the NGT rightly found that when the

Bio-Medical Waste Treatment facility of the Appellant was being

operated with the requisite consent to operate, it could not be

closed on the ground of want of prior Environmental Clearance.

The issues raised/involved in this appeal are squarely covered by

the judgment of this Court in Electrosteel Steels Limited

(supra) and Pahwa Plastics Pvt. Ltd. (supra). This Court cannot

lose sight of the fact that the operation of a Bio-Medical Waste

Treatment Facility is in the interest of prevention of environmental

23

pollution. The closure of the facility only on the ground of want of

prior Environmental Clearance would be against public interest.

There are no grounds to interfere with the judgment and order of

the NGT in appeal as rightly argued by KSPCB and the Respondent

No.3. The appeal is barred by delay. In any case, the appeal does

not raise any substantial question of law. The appeal is therefore

dismissed.

.………………………………….J.

 [ INDIRA BANERJEE ]

…………………………………..J.

 [ J. K. MAHESHWARI ]

NEW DELHI;

SEPTEMBER 22, 2022