whether an establishment employing about 8000 workers, which has been set up pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post facto EC can be closed down pending issuance of EC, even though it 1 may not cause pollution and/or may be found to comply with the required pollution norms.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4795 OF 2021
M/S PAHWA PLASTICS PVT. LTD. AND ANR. …... Appellants
Versus
DASTAK NGO 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 an order dated 3rd June 2021 passed by the Principal
Bench of the National Green Tribunal (NGT) in O.A No.287/2020 at New
Delhi, inter alia, holding that establishments such as the
manufacturing units of the Appellants, which did not have prior
Environmental Clearance (EC) could not be allowed to operate.
2. The question of law involved in this appeal is, whether an
establishment employing about 8000 workers, which has been set up
pursuant to Consent to Establish (CTE) and Consent to Operate (CTO)
from the concerned statutory authority and has applied for ex post
facto EC can be closed down pending issuance of EC, even though it
1
may not cause pollution and/or may be found to comply with the
required pollution norms.
3. With increasing industrialization and the establishment of
factories which emitted smoke and other pollutants, there was
worldwide concern for protection of environment. In June 1972, the
United Nations Conference on the Human Environment was held in
Stockholm, where decisions were taken to take appropriate steps for
preservation of the natural resources of the earth, which, among other
things, included preservation of the quality of air and water by
controlling pollution.
4. In 1974, Parliament enacted the Water (Prevention and Control of
Pollution) Act, 1974, with a view to prevent and control water pollution
and to maintain and restore wholesomeness of water.
5. In furtherance of the decisions taken at Stockholm, Parliament
enacted the Air (Prevention and Control of Pollution) Act, 1981,
hereinafter referred to as “the Air Pollution Act”, to provide for
prevention, control and abatement of air pollution.
6. The Air Pollution Act provides for the constitution of a Central
Pollution Control Board (CPCB) and State Pollution Control Boards
(SPCB) to deal with the problem of air pollution. Section 16 of the Air
Pollution Act enables the Central Pollution Control Board to take steps
to improve the quality of air and to prevent, control or abate air
pollution in the country. Section 17 of the Air Pollution Act enables the
State Pollution Control Boards to plan comprehensive programmes for
2
the prevention, control or abatement of air pollution, inter alia, by
laying down standards for emission of air pollutants.
7. Section 18 of the Air Pollution Act enables the Central
Government to give directions by which the CPCB is to be bound.
Similarly, every SPCB is to be bound by directions in writing as might
be given by the CPCB or the State Government.
8. Where a notification is issued under the Air Pollution Act, placing
an area within the control area of air pollution, permission is necessary
to set up and operate any factory or plant thereat. No person
operating any factory or plant in any air pollution control area is to
discharge or cause or permit to be discharged the emission of any air
pollutants, in excess of the standards laid down by the SPCB under
Clause (g) of sub-Section (1) of Section 17.
9. The Environment (Protection) Act, 1986, hereinafter referred to
as “the EP Act” was also enacted pursuant to the decisions taken at
the United Nations Conference on the Human Environment, held in
Stockholm in June, 1972. As per the Statement of Objects and Reasons
for enactment of the EP Act, the said Act has been prompted by
concern over the environment, that has grown all over the world since
the 60s.
10. Sub-section (1) of Section 3 of the EP Act empowers the Central
Government to take all such measures as it might deem necessary or
expedient for the purpose of protecting and improving the quality of
3
the environment and preventing, controlling and reducing
environmental pollution.
11. Sub-section (2) of Section 3 of the EP Act enables the Central
Government to take, inter alia, the following measures:
“(i) co-ordination of actions by the State Governments, officers and
other authorities—
(a) under this Act, or the rules made thereunder; or
(b) under any other law for the time being in force which is relatable
to the objects of this Act;
(ii) planning and execution of a nation-wide programme for the
prevention, control and abatement of environmental pollution;
(iii) laying down standards for the quality of environment in its
various aspects;
(iv) laying down standards for emission or discharge of
environmental pollutants from various sources whatsoever:
Provided that different standards for emission or discharge may be
laid down under this clause from different sources having regard to
the quality or composition of the emission or discharge of
environmental pollutants from such sources;
(v) restriction of areas in which any industries, operations or
processes or class of industries, operations or processes shall not be
carried out or shall be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention of
accidents which may cause environmental pollution and remedial
measures for such accidents;
(vii) laying down procedures and safeguards for the handling of
hazardous substances;
(viii) examination of such manufacturing processes, materials and
substances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research relating
to problems of environmental pollution;
(x) inspection of any premises, plant, equipment, machinery,
manufacturing or other processes, materials or substances and
giving, by order, of such directions to such authorities, officers or
4
persons as it may consider necessary to take steps for the
prevention, control and abatement of environmental pollution;
(xi) establishment or recognition of environmental laboratories and
institutes to carry out the functions entrusted to such environmental
laboratories and institutes under this Act;
(xii) collection and dissemination of information in respect of
matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the
prevention, control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems
necessary or expedient for the purpose of securing the effective
implementation of the provisions of this Act.”
12. Sub-section (3) of Section 3 of the EP Act provides as follows:
“3. Power of Central Government to take measures to protect and
improve environment.—
...
(3) The Central Government may, if it considers it necessary or
expedient so to do for the purposes of this Act, by order,
published in the Official Gazette, constitute an authority or
authorities by such name or names as may be specified in the
order for the purpose of exercising and performing such of the
powers and functions (including the power to issue directions
under Section 5) of the Central Government under this Act and
for taking measures with respect to such of the matters
referred to in sub-section (2) as may be mentioned in the order
and subject to the supervision and control of the Central
Government and the provisions of such order, such authority or
authorities may exercise the powers or perform the functions or
take the measures so mentioned in the order as if such
authority or authorities had been empowered by this Act to
exercise those powers or perform those functions or take such
measures.”
13. Subject to the provisions of the EP Act, the Central Government
has power under sub-Section (1) of Section 3, to take all such
measures, as it deems necessary or expedient, for the purpose of
5
protecting and improving the quality of environment and preventing,
controlling or reducing environmental pollution.
14. Section 5 of the EP Act provides that notwithstanding anything
contained in any other law, but subject to the provisions of the EP Act,
the Central Government may, in exercise of its powers and
performance of its functions under the EP Act, issue directions in
writing to any person, officer or any authority and such person, officer
or authority shall be bound to comply with such directions.
15. In exercise of powers conferred by Sections 6 and 25 of the EP
Act, the Central Government has made the Environment (Protection)
Rules, 1986, hereinafter referred to as “the EP Rules”.
16. The Central Government issued an Environmental Impact
Assessment Notification dated 27th January 1994 in exercise of powers
conferred by sub-section (1) and clause (v) of sub-section (2) of
Section 3 of the EP Act read with clause (d) of sub-rule (3) of Rule 5 of
the EP Rules, directing that on and from the date of publication of the
said notification in the Official Gazette, expansion or modernization of
any activity or a new project listed in Schedule I to the said notification
shall not be undertaken in any part of India, unless it has been
accorded EC by the Central Government in accordance with the
procedures specified in the said notification.
17. In exercise of powers conferred by sub-section (1) and clause (v)
of sub-section (2) of Section 3 of the EP Act read with clause (d) of subrule (3) of Rule 5 of the EP Rules and in supersession of notification
6
number S.O. 60 (E) dated 27th January 1994, except in respect of things
done or omitted to be done before such supersession, the Central
Government issued a notification dated 14th September 2006, being
Notification S.O. 1533 (E) requiring prior environmental clearance from
the Central Government or as the case may be, by the State-Level
Environment Assessment Authority, duly constituted by the Central
Government under sub-section (3) of Section 3 of the EP Act.
18. In terms of the said notification dated 14th September 2006, the
process of environmental clearance for new projects was to comprise
of a maximum of four stages, all of which might not apply to particular
cases. The stages were (1) Screening, (2) Scoping, (3) Public
Consultation and (4) Appraisal.
19. 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
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.
20. The Appellants carry on business, inter alia, of manufacture and
sale of basic organic chemicals, namely, Formaldehyde. The Appellant
No.1, M/s Pahwa Plastics Private Limited has two manufacturing units,
one at village Kharawar in Rohtak, hereinafter referred to as the
“Rohtak Unit” and the other at village Jathlana, Jagadhri in Yamuna
Nagar in Haryana, hereinafter referred to as the “Yamuna Nagar Unit”.
7
The Appellant No.2 has a manufacturing unit at village Ghespur in
Yamuna Nagar, Haryana which is hereinafter referred to as the
“Yamuna Nagar Unit”. The manufacturing units established, run and
operated by the respective Appellants fall in the category of Micro,
Small and Medium Enterprise (MSME) as defined under the Micro,
Small and Medium Enterprises Development Act, 2006, hereinafter
referred to as “the MSME Act”.
21. On or about 31st March 2014, the Appellant No.1, M/s Pahwa
Plastics Ltd. applied for Consent to Establish (CTE) its Yamuna Nagar
unit for manufacture of Formaldehyde.
22. By a communication No. HSPCB/Consent/:2846616YAMCTE
3087415 dated 2nd June 2016, the Haryana State Pollution Control
Board (HSPCB) granted Consent to Establish (CTE) to the Appellant
No.1 M/s Pahwa Plastics Private Limited in respect of its Yamuna Nagar
Unit. The CTE was to remain valid for 60 months from the date of its
issue, to be extended for another year at the discretion of the Board or
till the time the unit started its trial production, whichever was earlier.
23. Some of the terms and conditions on which CTE was granted are
set out hereinbelow:-
“3. The officer/official of the Board shall have the right to access and
inspection of the industry in connection with the various processes
and the treatment facilities being provided simultaneously with the
construction of building/machinery. The effluent should conform the
effluent standards as applicable.
4. That necessary arrangement shall be made by the industry for
the control of Air Pollution before commissioning the plant. The
8
emitted pollutants will meet the emission and other standards as
laid/will be prescribed by the Board from time to time.
5. The applicant will obtain consent under section 25/26 of the Water
(Prevention & Control of Pollution) Act, 1974 and under section
21/22 of the Air (Prevention & Control of Pollution) Act, 1981 as
amended to-date-even before starting trial production.
6. The above Consent to Establish is further subject to the conditions
that the unit complies with all the laws/rules/decisions and
competent directions of the Board/Government and its functionaries
in all respect before commissioning of the operation and during its
actual working strictly.
***
8. The Electricity Department will give only temporary connection
and permanent connection to the unit will be given after verifying
the consent granted by the Board, both under Water Act and Air Act.
***
12. That there is no discharge directly or indirectly from the unit or
the process into any interstate river or Yamuna River or River
Ghaggar.
13. That the industry or the unit concerned is not sited within any
prohibited distances according to the Environmental Laws and Rules,
Notification, Orders and Policies of Central Pollution Control Board
and Haryana State Pollution Control Board.
***
17. In case of change of name from previous Consent to Establish
granted, fresh Consent to Establish fee shall be levied.
18. Industry should adopt water conservation measures to ensure
minimum consumption of water in their Process. Ground water
based proposals of new industries should get clearance from Central
Ground Water Authority for scientific development of previous
resources.
19. That the unit will take all other clearances from concerned
agencies, whenever required.
20. That the unit will not change its process without the prior
permission of the Board.
21. That the Consent to Establish so granted will be invalid, if the
unit falls in Aravali Area or non conforming area.
22. That the unit will comply with the Hazardous Waste Management
Rules and will also make the non-leachate pit for storage of
Hazardous waste and will undertake not to dispose off the same
except for pit in their own premises or with the authorized disposal
authority.
23. That the unit will submit an undertaking that it will comply with
all the specific and general conditions as imposed in the above
9
Consent to Establish within 30 days failing which Consent to
Establish will be revoked.”
24. By another communication No.HSPCB/Consent/:
2846618YAMCTO3098246 dated 26th March 2018, HSPCB granted
consent to the Appellant No.1 to operate its Yamuna Nagar Unit from
8
th February 2018 to 31st March 2022.
25. By an order No.HSPCB/YMN/2242, dated 31st March 2010, the
Appellant No.2, M/s Apcolite Polymer Private Limited was granted CTE
to establish its Yamuna Nagar Unit for manufacture of Formaldehyde
with the manufacturing capacity of 80 tonnes per day.
26. By another communication Nos. HSPCB/Consent/:
HSPCB/YMN/DLC/2011/4027 & HSPCB/YMN/DLC/2011/4029 dated 16th
January 2012, HSPCB granted the Appellant No.2, M/s Apcolite
Polymers Private Limited, Consent to Operate (CTO) its Yamuna Nagar
Unit. The CTO has been extended from 1st April 2016 till 31st March
2026, by a letter dated 13th March 2016. The CTO is valid till March
2026.
27. By a communication No. HSPCB/Consent/: 2846616YAMCT
OHWM2630357 dated 13th March 2016, HSPCB granted consent for
emission of AIR to Appellant No.2, M/s Apcolite Polymers Private
Limited in respect of its Yamuna Nagar Unit on, inter alia, the terms
and conditions specified in the said letter, some of which are extracted
hereinbelow:-
10
“10. The air pollution control equipment of such specification which
shall keep the emissions within the emission standard as approved
by the State Board from time to time shall be installed and operated
in the premises where the industry is carrying on/proposed to carry
on its business.
11. The existing air pollution control equipment if required shall be
alerted or replaced in accordance with the direction on the Board.
12. All solid wastes arising in the factory premises shall be properly
graded and disposed of by:-
(i) In case of Land fill material, care should be taken to ensure that
the material does not give rise to leachate which may percolate in
ground water of carried away with storm run off.
(ii) Composting in case of bio degradable materials.
(iii) If the method of incineration is used for the disposal of solid
waste the consent application should be processed separately and it
should be taken up which consent is granted.
13. The industry shall submit an undertaking to the effect that the
above conditions shall be complied with by them.
14. The applicant shall submit its undertaking to the effect that the
above conditions shall be complied with by them.
15. The applicant shall make an application for grant of fresh
consent at least 90 days before the date of expiry of this consent.
***
18. There should not be any fugitive emission from the premises.
19. The liquid effluent arising out of the operation of the air pollution
control equipment shall also be treated in a manner and to the
standards stipulated in the consent granted under Water (Prevention
& Control of Pollution) Act, 1974 by this Board.
***
21. If the industry fails to adhere to any of the condition of this
consent order the consent so granted shall automatically lapse.
***
33. The industry shall submit Environment Audit report once in a
year.
***
38. In case of by passing the emissions, the consent shall be
deemed revoked.”
11
28. It is the case of the Appellants that at the time when CTE was
granted to the Appellants, it was thought that EC was not required for
units which manufactured Formaldehyde. Even HSPCB itself was not
sure of whether EC was required for such units.
29. Mr. Gupta argued that the Appellants were bona fide under the
impression that the Appellants were not required to obtain prior EC for
setting up this establishment to manufacture Formaldehyde. On the
basis of CTE granted by HSPCB, the Appellants set up their units taking
huge loans from banks for which repayments have to be paid in
installments.
30. 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.
(4) The cases of violation will be appraised by respective sector
Expert Appraisal Committees constituted under sub-section (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
12
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.”
31. 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.
32. 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
13
like manner, and subject to like sanction 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 to amend, vary or rescind notifications, orders, rules
or bye-laws can be exercised from time to time having regard to the
exigency.
33. 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.
34. The Ministry of Environment, Forest and Climate Change (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.
1 (2011) 3 SCC 193
14
It was proposed that 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.
35. On 10th November 2020, the Department of Environment and
Climate Change of the Government of Haryana issued an order which
is extracted hereinbelow for convenience:
“Whereas the process of manufacturing of Formaldehyde is covered
under the provisions of 5(f) of Schedule of Environment Impact
Assessment Notification (EIA), 2006 of Government of India, and
requires the prior Environmental Clearance (EC) from the competent
authority State Environment Impact Assessment Authority
(SEIAA)/Ministry of Environment, Forest and Climate Change,
Government of India, before establishment and operation of such
units, besides other mandatory clearance, as applicable;
Whereas, it has come to the notice of Government that around
15 such units have been permitted to establish/operate in the State
of Haryana, without obtaining the necessary Prior Environmental
Clearances, but with the Consent of the Haryana State Pollution
Control Bureau (HSPCB), which misinterpreted the category of such
units and on realising the requirement of EC in these cases, has
revoked its consents issued earlier to these units recently;
Whereas, some of these units approached the Government
explaining their hardship due to such sudden revocation of their
consents and have sought time for obtaining the necessary EC from
the competent authority as the process is likely to take a minimum
of 6 months to one year period, and to allow them to operate with
15
all pollution control measures, following the pollution control norms
applicable, and,
Whereas, the Government has carefully considered their
request and the competent authority has decided that these units
shall be allowed to continue their operations for a period of six
months, without prejudice to any legal action taken against the
violations committed by them, by the competent authorities, with
the conditions that they will immediately apply for Environmental
Clearance from the competent authority and provide the proof of
such application within 60 days from the issuance of this
communication to Environment and Climate Change Department
and to Haryana State Pollution Control Board.
Therefore, it is ordered accordingly.”
36. Referring to the Counter Affidavit filed by HSPCB before the NGT,
Mr. Gupta pointed out that, since HSPCB itself was under the
misconception that prior EC was not necessary for units such as the
Yamunanagar units of the Appellants Nos. 1 and 2 respectively.
HSPCB took a policy decision to allow the units which did not have
prior EC to operate for six months, on condition that they would apply
for EC within sixty days.
37. The Appellants duly applied for EC in respect of their
manufacturing units. After scrutinizing their applications and after
finding the units suitable for grant of EC in terms of the prevailing
guidelines, the Expert Appraisal Committee constituted by the
MoEF&CC conducted a public hearing to finalize the cases of the
Appellants for issuance of Terms of Reference (TOR).
38. By an Office Memorandum, being F.No. 22-21/2020-1A III, dated
7
th July 2021, the MoEF&CC issued Standard Operating Procedure (SOP)
for identification and handling of violation cases under EIA Notification
2006.
16
39. 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. Vs Synochem Organics Pvt. Ltd. & Ors. and in
applications pertaining to same subject matter in Original
Application No. 298 of 2020 in Vineet Nagar vs. 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.”
40. The SOP formulated by the said Office Memorandum dated 7th
July 2021 refers to and gives effect to various judicial pronouncements
17
including the judgment of this Court in Alembic Pharmaceuticals
Ltd. v. Rohit Prajapati & Others
2
.
41. 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 polluter
pays and is liable for costs of remedial measures.
42. By an order dated 9th July 2021, the MoEF&CC confirmed the
minutes of an earlier meeting of the Expert Appraisal Committee and
recommended issuance of terms of reference to the Appellant No.1,
M/s Pahwa Plastics Private Limited for expansion of its Formaldehyde
Manufacturing unit from 60 TPD to 150 TPD.
43. In the meanwhile, on or about 26th November 2020, the
Respondent No.1, a Non-Governmental Organisation (NGO) hereinafter
referred to as “Dastak” filed an application being O.A. No./287/2020
before the NGT praying that the order dated 10th November 2020
passed by the State of Haryana be quashed and units which were
operating without EC be closed. The NGT disposed of the said
application of Dastak by the impugned order dated 3rd June 2021.
44. 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
2 2020 SCC Online SC 347
18
Madras High Court admitted the Writ Petition and stayed the said
memorandum.
45. 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.
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. vs 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 vs. 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
19
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 (cited 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."
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.”
20
46. It is true that in the case of Puducherry Environment
Protection Association v. Union of India
3
, 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.
47. 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 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.
48. 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
3 2017 SCC OnLine Mad 7056
21
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.
49. The Appellants have already applied for EC. The Expert
Appraisal Committee of the MoEF&CC has, after scrutinizing the
application of the Appellants and finding them eligible for grant of EC,
recommended their cases for grant of Terms of Reference (ToR). ToR
was granted to the Appellants and a public hearing had also been
conducted. Only last procedural step of issuance of EC is left.
50. It is claimed that the units of the Appellants are totally non-polluting
units having “Zero Trade discharge”. They have been in operation for
many years. In the reply affidavit filed by the State before the NGT, it was
mentioned that the units were operating in good faith with valid CTOs
granted by the HSPCB. It was stated that the units were not causing
pollution hazards. The only thing against the units was the procedural
lapse of not obtaining EC.
51. By a communication No. F. No. IA-J-110011/185/2020-IA-II(I) dated
20th July 2021 issued to the Appellant No.1, the MoEF&CC rejected the
proposal for terms of reference on the purported ground that the activity
of the Appellant No.1 was covered under category “A” of item 5(f)
“Synthetic Organic Chemicals” of the Schedule to the EIA Notification,
2006. A similar communication was issued in respect of M/s Apcolite
Polymers Pvt. Ltd. Significantly, by an order dated 9th July 2021, the
MoEF&CC had confirmed the minutes of an earlier meeting of the Expert
22
Appraisal Committee and recommended issuance of ToR to the Appellant
No.1, as observed above. The proposal for Terms of Reference has
obviously been rejected at the final stage after the public hearing, by
reason of the impugned order dated 3rd June 2021 passed by the NGT on
the application of Dastak, which is under appeal.
52. This appeal was listed for admission on 30th September 2021, along
with an application for interim relief being I.A. No.110064 of 2021 praying
for orders permitting the Appellants to operate their units during the
pendency of the appeal. The appeal was heard at length at the
admission stage and reserved for judgment along with the interim
application by an order dated 30th September 2021.
53. After receiving the communication dated 20th July 2021 rejecting the
proposal for Terms of Reference, the Appellants requested HSPCB to
forward to the Appellants the proceedings of public hearing in respect of
the manufacturing units of the Appellants. By a communication No.
HSPCB/YR/2021/2830 dated 15th February 2022, HSPCB forwarded
proceedings of the public hearing in respect of the Yamuna Nagar unit of
the Appellant No.1. By another Communication No.
HSPCB/YR/29021/2829 dated 15th February 2022 the HSPCB forwarded to
the Appellant No.2 the proceedings of the public hearing held on 3rd
February 2022 in connection with the Yamuna Nagar Unit of the Appellant
No.2.
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
23
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.
55. In Electrosteel Steels Limited v. Union of India
4
, 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
operation 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 14th 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
27th January, 1994, which was statutory. Ex post facto
4 2021 SCC online SC 1247
24
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.
***
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.”
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 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
25
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.
58. As held by a three Judge Bench of this Court in Lafarge Umiam
Mining Private Limited v. Union of India
5
:-
“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.”
59. 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 the environment. An
EC can be issued only after various stages of the decision5 (2011) 7 SCC 338
26
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.”
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.”
61. 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 14th September 2006.
62. 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
27
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.
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
28
environmental clearance, pending the issuance of EC, even though it
may 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.
65. It is reiterated that the 1986 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 in their survival.
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
29
that the NGT erred in law in directing that the units cannot be allowed
to function till compliance of the statutory mandate.
67. Accordingly, the appeal is allowed. The impugned order is set
aside in so far as the same is applicable to the units of the Appellants
established and operated pursuant to CTE and CTO from the HSPCB in
respect of which applications for ex post facto EC have been filed.
The Respondent shall take a decision on the applications of the
Appellants for EC in accordance with law within one month from date.
Pending decision, the operation of the Pahwa Yamuna Nagar Unit and
the Apcolite Yamuna Nagar Unit, in respect of which consents have
been granted and even public hearing held in connection with grant of
EC, shall not be interfered with.
68. The Appellants will be allowed to operate the units. Electricity, if
disconnected, shall be restored subject to payment of charges, if any. If
the application for EC is rejected on the ground of any contravention
on the part of the Appellants, it will be open to the Respondents to
disconnect the supply of electricity.
69. The Union of India had proceeded with the application for EC and
even public hearing had been held. Counsel appearing on behalf of
the Union of India contended that the Appellant had not submitted its
final application for EC, after public hearing. It is not clear what more
was required of the Appellants. Be that as it may, the Union of India
shall, within three working days from the date of receipt of a copy of
this judgment and order, inform the Appellants in writing of whether
30
anything further is required to be done by the Appellants, and if so
what is required to be done. The Appellants shall, within a week
thereafter do the needful. The final decision on the application of the
Appellants for EC shall be taken within three weeks thereafter.
70. The application being I.A. No.110064/2021 and other pending
applications, if any, in this appeal are disposed of accordingly.
…..............................J.
[INDIRA BANERJEE]
................................J.
[J.K. MAHESHWARI]
NEW DELHI
MARCH 25, 2022
31
