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 

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