whether in the facts and circumstances of the instant case, the appellants No.2 and 3 should also be held equally guilty as the appellant No.1.=there is no specific role with regard to the demand of dowry and nor has any specific instance of cruelty and harassment been ascribed to the appellants No.2 and 3 except for the general assertion. Moreover, in a circumstance where the charge was also under Section 120B IPC, there is no specific evidence led by the prosecution relating to the conspiracy allegedly hatched by the appellants. In the aforesaid circumstances, we are of the opinion that the appellants No.2 and 3 deserve to be given the benefit of doubt and their conviction would not be justified.

CRIMINAL APPEAL NO.383 OF 2018

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.383 OF 2018

Devender Singh & Ors. .… Appellants

Versus

The State of Uttarakhand …. Respondent

J U D G M E N T

Hima Kohli, J.

1. The appellants have assailed the judgment dated 14th September, 2017,

passed by the High Court of Uttarakhand at Nainital in Government Appeal No.57 of

2010, whereby the judgment dated 17th April, 2010 passed by the learned Sessions

Judge, Rudraprayag acquitting them from the charges under Section 498A, 304B

and 120B of the Indian Penal Code1

 has been reversed and they have been

sentenced to undergo rigorous imprisonment for a period of seven year with a fine

of ₹10,000/- (Rupees Ten thousand) and in default, to undergo simple imprisonment

for three months for the offence under Section 304B IPC. The appellants have also

been sentenced to undergo rigorous imprisonment for one year under Section 120B

IPC and two years under Section 498A IPC. Being aggrieved by the said judgment

1 for short “IPC”

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CRIMINAL APPEAL NO.383 OF 2018

and order of conviction, the appellants are before this Court, in this appeal by way of

special leave.

2. The brief facts leading to the case are that the appellant No.1, Devender

Singh, son of appellant No. 3, Smt. Kunja Devi and Bhawan Singh was married to

the deceased, Sushila, the wedding having been solemnized on 20th October, 2007.

Sushila is stated to have gone missing from her matrimonial home since 24th April,

2008. This came to the knowledge of the mother of the deceased when the

appellant No.2 herein, Jagdish Singh, brother of the appellant No. 1 called her on

25th April, 2008, at 7.00 p.m. to inform her and enquire as to whether Sushila had

gone to the parental home. The mother of the deceased in turn informed her son,

the complainant, who resided at Haridwar. On returning to his house, the

complainant went to the matrimonial home of the deceased on 28th April, 2008. It

has been alleged by the complainant that keeping in view the fact that there were

repeated demands for dowry made by the appellants and the manner in which they

had behaved with him when he had gone to visit them, made him suspect that his

sister had been killed by the appellants but they were feigning ignorance and acting

as if his sister had gone missing.

3. Based on the complaint, investigation was carried out by the local police

and the body of Sushila was subsequently found in Ganga river. Having regard to

the fact that an unnatural death had taken place within about six months of the

marriage and since there was an allegation of cruelty relating to demand of dowry, a

case was registered against the appellants under Sections 498A, 304B and 120B of

IPC. The appellants having denied the allegations levelled against them, trial was

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CRIMINAL APPEAL NO.383 OF 2018

conducted in Sessions Trial No.18/2008 before the District and Sessions Judge,

Rudraprayag. In support of their case, the prosecution examined 14 witnesses

arrayed as PW-1 to PW-14. Besides denying their role while recording their

statements under Section 313 of the Criminal Procedure Code, the

appellants/accused also examined DW-1 to DW-3 as their witnesses. On

considering the evidence, the trial Court recorded findings in favour of the appellants

and acquitted all of them vide judgment dated 17th April, 2010.

4. Being aggrieved by the judgment dated 17th April, 2010, State of

Uttarakhand preferred an appeal before the High Court of Uttarakhand at Nainital

vide Government Appeal No.57 of 2010. On reappreciating the entire evidence

exhaustively and on applying the legal principles, the High Court has allowed the

said appeal. Consequently, the judgment and order dated 17th April, 2010 passed by

the Sessions Judge in Sessions Trial No.18 of 2018 was set aside. The appellants

have been convicted under Sections 498A, 304B and 120B of IPC and sentenced to

undergo rigorous imprisonment for a period of seven years and pay a fine of

₹10,000/- (Rupees Ten thousand) and in default, to undergo three months simple

imprisonment under Section 304B IPC. The appellants have also been sentenced to

undergo rigorous imprisonment of one year under Section 120B IPC and two years

under Section 498A IPC. The sentence was handed down by a separate order dated

05th October, 2017. Claiming to be aggrieved by the judgment of conviction and

sentence handed down by the High Court, the appellants are before this Court.

5. Mr. Robin R. David, learned counsel for the appellants while assailing the

judgment passed by the High Court has taken us through the records. It is his

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CRIMINAL APPEAL NO.383 OF 2018

contention that the High Court has committed an error by misdirecting itself to note

the conduct of the appellants in committing a delay in registering the missing

complaint relating to the deceased. He contended that a contradictory view has

been taken by the High Court while arriving at the conclusion that the complaint was

filed after more than 48 hours of the incident despite noticing the fact that the

appellant No.1 had telephonically informed the Patwari of the village on 26th April,

2008 and the appellant No.2 had informed the mother of the deceased of the latter

going missing from the matrimonial home since 24th April, 2008 itself. He submitted

that such an assumption on the part of the High Court has led to a wrong

conclusion. Further, it has been argued that the High Court has fallen into an error

by holding that there is material on record to indicate that the appellants had been

harassing the deceased for bringing insufficient dowry. He pointed out that the

mother of the deceased (PW-1) had admitted to the fact that the deceased was

staying at the parental home only to continue her studies. Therefore, the claim of

dowry demand being made, as stated, is unacceptable. He further pointed out that

DW-3 in whose presence the marriage talks had been held, had deposed in her

evidence that there was no demand for dowry and that the marriage expenses had

also been shared between the parties.

6. Learned counsel for the appellants further submitted that the fact of the

appellant No.1 having opened a bank account in the name of the deceased wherein

he was depositing a sum of ₹100/- (Rupees One hundred) on alternate days would

go to show that there was no reason for the appellants to have made any monetary

Page 4 of 17

CRIMINAL APPEAL NO.383 OF 2018

demands on her. He also contended that the High Court has erred in arriving at the

findings relating to the cause of death of Sushila. He alluded to the deposition of

PW-10, the doctor who had indicated that the cause of death was due to shock and

blood flow received from the injuries sustained and opined that such injuries could

occur if a person falls down from a standing rock. Judicial notice taken by the High

Court that villagers would go in groups to the forest to bring fodder and fuelwood, is

stated to be unwarranted in the facts and circumstances of the present case, without

there being any cogent evidence in this regard. It was argued that the trial Court

had in fact taken note of the evidence in its correct perspective and arrived at a valid

conclusion, which ought not to have been disturbed by the High Court more so,

when there was no strong basis for doing so. It was thus submitted that the appeal

be allowed and the impugned judgment be set aside.

7. Mr. Jatinder Kumar Bhatia, learned counsel for the State would seek to

sustain the judgment passed by the High Court. It was his contention that the trial

Court had in fact proceeded to analyse the evidence as if it was considering a

matter where the charge framed was for committing murder under Section 302 IPC,

whereas, in the instant case, the charges framed against the appellants was under

Sections 304B and 498A read with Section 120B IPC, in respect of “dowry death”.

The said provision itself raises certain presumptions against the accused. In a

matter where the death of the wife of the appellant No.1 had occurred within a few

months of her marriage when she was residing at the matrimonial home and such a

death is an unnatural one, it was for the appellants to have explained the

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CRIMINAL APPEAL NO.383 OF 2018

circumstance under which the death had occurred when prima-facie, the

prosecution had succeeded in proving the basic ingredients of the section. In that

light, it was sought to be urged that the trial Court had in fact completely misdirected

itself. It was further submitted that the High Court while deciding an appeal was

required to re-appreciate the evidence which has been meticulously done by

referring to the evidence tendered by each of the witnesses. Learned State counsel

contended that on analyzing the evidence brought on record in the context of the

legal position, as enunciated in various decisions of this Court which were taken

note of, the High Court has arrived at a just conclusion and has found the judgment

of the trial Court to be erroneous, resultantly setting aside the same.

8. In the light of the rival contentions and the charges levelled against the

appellants and to place the matter in its correct perspective, it is considered

necessary to take note of the provision as contained in Section 304B of IPC which

reads as follows :-

“304B. Dowry death.—(1) Where the death of a woman is caused by any

burns or bodily injury or occurs otherwise than under normal circumstances

within seven years of her marriage and it is shown that soon before her death

she was subjected to cruelty or harassment by her husband or any relative of

her husband for, or in connection with, any demand for dowry, such death

shall be called “dowry death”, and such husband or relative shall be deemed

to have caused her death.

Explanation.—For the purposes of this sub-section, “dowry” shall have the

same meaning as in section 2 of the Dowry Prohibition Act, 1961 [28 of 1961].

(2) Whoever commits dowry death shall be punished with imprisonment for a

term which shall not be less than seven years but which may extend to

imprisonment for life.”

9. A perusal of the above provision would indicate that the main ingredients

of the offence required to be established are :-

(i) that soon before the death, the deceased was subjected to cruelty and

harassment in connection with the demand of dowry;

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CRIMINAL APPEAL NO.383 OF 2018

(ii) the death of the deceased was caused by any burn or bodily injury or

some other circumstance which was not normal;

(iii) such a death has occurred within 7 years from the date of her marriage;

(iv) that the victim was subjected to cruelty or harassment by her husband or

any relative of her husband;

(v) such a cruelty or harassment should be for, or in connection with the

demand of dowry; and

(vi) it should be established that such cruelty and harassment were made

soon before her death.

10. The presumption drawn relating to dowry death has been contemplated in

Section 113B of the Indian Evidence Act, 1872, which states as follows :

“113B. Presumption as to dowry death - When the question is whether a

person has committed the dowry death of a woman and it is shown that

soon before her death such woman has been subjected by such person to

cruelty or harassment for, or in connection with, any demand for dowry, the

Court shall presume that such person had caused the dowry death.

Explanation - For the purposes of this section, “dowry death” shall have the

same meaning as in section 304B of the Indian Penal Code (45 of 1860).”

11. Section 304B IPC read along with Section 113B of the Indian Evidence

Act, 1872 makes it clear that once the prosecution has succeeded in demonstrating

that a woman has been subjected to cruelty or harassment for or in connection with

any demand for dowry soon after her death, a presumption shall be drawn against

the said persons that they have caused dowry death as contemplated under Section

304B IPC. The said presumption comes with a rider inasmuch as this presumption

can be rebutted by the accused on demonstrating during the trial that all the

ingredients of Section 304B IPC have not been satisfied. [Ref.: Bansi Lal vs. State

Page 7 of 17

CRIMINAL APPEAL NO.383 OF 2018

 of Haryana2

 , Maya Devi and Anr. vs. State of Haryana3

 , G.V. Siddaramesh v.

 State of Karnataka4

 and Ashok Kumar vs. State of Haryana5

 ].

12. Having taken note of the relevant provision and the ingredients thereof,

the facts of the instant case would disclose that the deceased and the appellant

No.1 had got married on 20th October, 2007. Sushila, wife of the appellant No.1 had

gone missing from the matrimonial home from 24th April, 2008 and her dead body

was fished out on the 10th day from river Alakhnanda near Naragasu. From the

basic facts noted above, the basic ingredients of Section 304B IPC such as the

death not being normal and such a death having occurred within 7 years from the

date of her marriage would stand fully established. The question, therefore, is as to

whether the evidence tendered by the prosecution would be sufficient to establish

the remaining ingredients of Section 304B IPC with regard to the demand for dowry

and perpetration of cruelty and harassment in connection with such a demand.

Further, whether such cruelty and harassment were suffered by the deceased soon

before her death so as to constitute a dowry death. As to the phrase ‘soon before

her death’, it is well-settled that the same ought to be interpreted to mean proximate

and to be linked with but not to be understood to mean immediately prior to the

death.

2 (2011) 11 SCC 359

3 (2015) 17 SCC 405

4 (2010) 3 SCC 152

5(2010) 12 SCC 350

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CRIMINAL APPEAL NO.383 OF 2018

13. While taking note of the evidence and the other aspects of the matter,

what is also to be borne in mind in the instant case is that the death which did not

take place in normal circumstances, had occurred within just about 6 months from

the date of the marriage. In that context, a perusal of the evidence of Smt. Thapa

Devi (PW-1), mother of the deceased gains significance. She had categorically

stated that when the deceased had for the first time come to the parental home from

her in-laws, she had said that her in-laws and husband were demanding dowry and

had been harassing her. The nature of the demand was also specified to say that

they were seeking payment of a sum of ₹2,00,000/- (Rupees Two lakhs) as dowry

and in the alternative, to get a house constructed in Haridwar. PW-1 further stated

that on 10th April, 2008, when she had gone to her daughter’s house, the appellants

had at that stage quarrelled with her and placed a demand before her for

₹2,00,000/- (Rupees Two lakhs) or to have a house constructed for them in

Haridwar. She however came back on 11th April, 2008, leaving her daughter behind.

Within 2-4 days thereafter, the deceased is stated to have called PW-1 indicating

that she was disturbed as the appellants were harassing her badly and also beating

her. PW-1 stated that she had conveyed this to her brother-in-law, Mr. Rajendra

Singh and shared with him about such a demand and harassment faced by the

deceased. Her brother-in-law had assured her that he would come over after 2-3

days and attempt to sort out the matter.

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CRIMINAL APPEAL NO.383 OF 2018

14. When this was the position, on 25th April, 2008, PW-1 received a phone

call, from appellant No.2, brother of her son-in-law (appellant No.1) who had

enquired as to whether the deceased had come to the parental home as she was

missing from the matrimonial home. PW-1 thereafter informed her sons, who came

from Haridwar and thereafter went to the in-laws’ place. It is undisputed that the

body was traced after 10 days. The evidence tendered by PW-1 was not discredited

in the cross-examination. It was suggested to PW-1 that the deceased was staying

for most of the time at the parental home within about 10-11 days after the marriage

so as to complete her education and the said suggestion was made to indicate that

there was no scope for demanding dowry. However, this was clarified by PW-1 who

stated that though it was so, the deceased had gone back to the matrimonial home

on the very next day when her inter-examination was over. The further suggestion

made that the appellants No.2 and 3 were residing in a separate house away from

that of the appellant No.1 was also denied.

15. In addition to the aforesaid evidence, the High Court has noted the

evidence of Balbir Singh (PW-2), brother of the deceased, who corroborated the

version of the mother of the deceased (PW-1). In fact, PW-2 has also stated with

regard to the deceased having telephoned on the morning of 24th April, 2008 and

informed them that she was pregnant and had pain in her abdomen and when she

told her husband to bring medicine and a blouse piece, she was beaten by saying

that she should get it from her parents. The evidence of Smt. Mira Bhandari (PW-3),

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CRIMINAL APPEAL NO.383 OF 2018

sister-in-law of the deceased and Sh. Tajwar Singh (PW-4), brother of the deceased,

was also taken note of by the High Court in reasonable detail wherein the sequence

of the events as narrated by PW-1 and PW-2 stood corroborated by them. Further,

Sh. Rishipal Singh (PW-5), and Sh. Rajendra Singh (PW-7), uncles of the deceased

had also deposed with regard to the incident and that they were told about the dowry

demand and harassment caused to the deceased. Sh. Vijaypal Singh (PW-8), the

Pradhan of the village deposed that he was aware that the deceased had gone

missing on 24th April, 2008 and they were searching for her subsequently. He had

also visited the spot from where the body had been recovered.

16. Though, it was contended on behalf of the appellants that the Patwari had

been informed immediately, Sh. Jagdish Prasad Gairola (PW-9) who was the

Patwari, stated that appellant No.1 had informed him on the telephone only on 26th

April, 2008, that his wife had gone missing, which he is stated to have entered in the

G.D. The contention as put forth by learned counsel for the appellants regarding no

delay in making the complaint as noted by the High Court, loses significance in the

light of the other related aspects.

17. Though, the High Court has also referred to the evidence of the remaining

witnesses produced by the prosecution, keeping in view the fact that the evidence

as required for establishing the demand of dowry and harassment is to be noted

from the evidence as taken note of hereinabove, it would be clear that even though

the appellants have sought to urge that at the time of fixing the marriage, no dowry

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CRIMINAL APPEAL NO.383 OF 2018

was exchanged or demand placed and that the wedding expenses were also shared

by both sides, the categorical oral testimony of PW-1 to PW-4 that remained

unshaken would indicate that soon after the marriage, when the deceased for the

first time came to her parental home, she had stated about the demand for dowry

made on her and specified the demand, i.e., a sum of ₹2,00,000/- (Rupees Two

lakhs) or to construct a house in Haridwar. Even though it has been contended on

behalf of the appellant that the deceased was staying at her parental house to

complete her studies, as per the version of PW-1 while accepting that position, she

had asserted that about 10-11 days after the wedding, Sushila had gone to her

parental home but soon after sitting for the intermediate examination, she had gone

back to the matrimonial home. The fact however remains that she went missing from

the matrimonial home and the body was recovered from the river in the vicinity of the

matrimonial home. In that regard, apart from the testimony of the witnesses who

deposed that the deceased had told them about the dowry demand and harassment

during her first visit to the parental home, PW-1 referred to the incident that took

place on 10th April, 2008, when she herself had gone with her daughter to the inlaws’ house to drop her and all of them had quarrelled with her on the aspect relating

to dowry in the same terms, i.e., a demand of ₹2,00,000/- (Rupees Two lakhs) or for

a house to be built in Haridwar. She had thereafter returned on 11th April, 2008 which

was about two weeks prior to the date on which the deceased had gone missing.

Further, PW-1 has also stated that within 2-4 days from 11th April, 2008, after she

had returned, the deceased had made a phone call and was very disturbed since

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CRIMINAL APPEAL NO.383 OF 2018

she was being harassed badly and was being beaten. She had shared this with her

brother-in-law, Sh. Rajendra Singh, who has been examined as PW-7. In addition,

PW-2 also deposed with regard to the complaint made by the deceased over the

phone in the morning of the fateful day, i.e., 24th April, 2008, about her husband

treating her with cruelty when in her pregnant state, she had asked for medicine for

the pain in her abdomen.

18. In the above background, even if in the evidence, Smt. Maya Devi (DW-3)

who was the go-between for finalizing the marriage, had stated that there was no

demand for dowry at that point in time, it is of no consequence since what is relevant

is the demand which was made subsequent to the marriage and soon before the

incident to which the said witness was in any event, not privy.

19. Further, the evidence of Sh. Rakesh Bisht (DW-1) to the effect that the

appellant No.1 had opened a Bank account in the name of the deceased and was

depositing ₹100/- (Rupees one hundred) every other day in the said account with

effect from 07th December, 2007, cannot alter the situation since that, in any event,

cannot take away the specific nature of the dowry demand that was referred to by

PW-1 to PW-4, as having been made by the appellant No.1. The evidence of Shri

Prem Singh (DW-2) who stated that while he was travelling in a bus on 24th May,

2008, he had noticed a girl wearing red clothes falling from the cliff, has rightly been

held to be unreliable in as much as if such an incident had been noticed by him,

admittedly the said witness did not take any further steps in that regard.

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CRIMINAL APPEAL NO.383 OF 2018

20. A perusal of the impugned judgment would disclose that the High Court

has appreciated the evidence in the correct perspective. Though the trial Court also

referred to the very same evidence and the analysis commenced from para 27 of the

judgment, it indicates that the observation made by the trial Court that there was no

such evidence available on the file that the murder of the deceased, Sushila had

been committed, will disclose that the trial court was appreciating the evidence from

the prism of assessing the charge under Section 302 IPC, when the evidence on

record ought to have been analyzed and appreciated keeping in mind the

requirements of Section 304B and 498A IPC and the ingredients thereof.

21. In the above backdrop and keeping in view the fact that the deceased was

residing at the matrimonial home and had gone missing in circumstances where all

the ingredients of Section 304B stood satisfied, the evidence of Dr. Digvijay Singh

(PW-10) becomes relevant. The nature of injuries found on the body of the

deceased at the time of the post-mortem was adverted to and PW-10 has deposed

that the death had occurred about a week earlier to the examination. He opined that

death had occurred due to shock and blood flow from the injuries received before

the death. The doctor was categorical that the cause of death was not from

drowning as there was no water inside the lungs and abdomen. Though learned

counsel for the appellants referred to this aspect to contend that the High Court has

erred in not properly considering the same, in our opinion, when it is indicated that

the deceased had suffered injuries before her death and there was loss of blood and

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CRIMINAL APPEAL NO.383 OF 2018

also when it is medically indicated that the death was not caused due to drowning as

there was no water in her lungs and abdomen, the natural corollary and a fair

conclusion would be that the said death had occurred even before falling into the

river, which would rule out any accidental fall, as sought to be claimed by the

appellants. In fact, this would only increase the burden cast upon the appellants to

explain the situation.

22. Though, the appellants have attempted to set up a story that the deceased

had gone to hills to cut grass, as rightly noted by the High Court, she could not have

gone alone. Be that as it may, except for a bald statement, the appellants have not

brought any material on record to demonstrate that it was a normal practice for the

deceased to go to the hills for cutting grass more so in circumstances where she

was less than six months at her matrimonial home, pregnant and also during that

very period, she had been going to her parental house for continuing her education,

as has been contended by the appellants themselves. Therefore, in such a situation,

we have no hesitation in observing that the appellants have miserably failed to rebut

the presumption drawn against them under Section 113B of the Evidence Act, in a

matter relating to an offence under Section 304B of IPC.

23. Having arrived at the above conclusion, the issue before us is as to

whether in the facts and circumstances of the instant case, the appellants No.2 and

3 should also be held equally guilty as the appellant No.1. It is no doubt true that the

evidence of PW-1 indicates that the deceased had informed her that the husband

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CRIMINAL APPEAL NO.383 OF 2018

and the in-laws had been harassing her and when PW-1 had gone to drop her

daughter back to the matrimonial home on 10th April, 2008, the in-laws had raised a

dowry demand. However, what has also been brought on record is that the

appellants No.2 and 3 were residing separately, in a different house. In the crossexamination of PW-1, a suggestion was made to her about the distance between the

two houses. Further, fact remains that the trial Court also referred to this aspect in

para 31 of the judgment where learned counsel for the defence had brought to the

notice of the Court that there were two ration cards and the ration card of the

appellants No.2 and 3 is separate from that of the appellant No.1 which mentions his

name and that of the deceased. That apart, the nature of the demand made was for

a lumpsum amount of ₹2,00,000/- (Rupees Two lakhs) or for constructing a house in

Haridwar, either of which was essentially for the benefit of the appellant No.1.

Therefore, there is no specific role with regard to the demand of dowry and nor has

any specific instance of cruelty and harassment been ascribed to the appellants

No.2 and 3 except for the general assertion. Moreover, in a circumstance where

the charge was also under Section 120B IPC, there is no specific evidence led by

the prosecution relating to the conspiracy allegedly hatched by the appellants. In

the aforesaid circumstances, we are of the opinion that the appellants No.2 and 3

deserve to be given the benefit of doubt and their conviction would not be justified.

24. In the above backdrop, the conviction and sentence handed down by the

High Court to the appellant No.1 (husband of the deceased) is upheld. However,

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CRIMINAL APPEAL NO.383 OF 2018

the conviction and sentence handed down by the High Court to the appellants No.2

and 3 is set aside. The judgment dated 14th September, 2017 passed in Government

Appeal No.57/2010 stands modified to the said extent. It is ordered that the

appellant No.2 and 3 who were released on bail on 12th March, 2008, be set free.

The bail bonds executed by the appellants No.2 and 3 are, accordingly, cancelled.

Appellant No.1 shall, however, surrender within two weeks and serve the remaining

part of the sentence imposed on him.

25. The appeal is partly allowed on the above terms.

26. Pending applications, if any, shall stand disposed of.

..…………....................CJI.

 [N.V. RAMANA]

…..…………....................J.

[A.S. BOPANNA]

..…..………......................J.

 [HIMA KOHLI]

New Delhi,

April 21, 2022.

Page 17 of 17

whether, the appellant­teacher is entitled to get the benefits of enhanced age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities.

whether,   the appellant­ teacher   is   entitled   to   get   the   benefits   of enhanced  age of superannuation of 65 years at par with his counterpart teachers serving in Government Colleges and Universities. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2974 OF 2022

Dr. Jacob Thudipara           ..Appellant (S)

Versus

The State of Madhya Pradesh & Ors.                ..Respondent (S)

J U D G M E N T 

M. R. Shah, J.

1. Feeling   aggrieved   and   dissatisfied   with   the   impugned

judgment   and   order   dated   09.05.2017   passed   by   the

Division   Bench   of   the   High   Court   of   Madhya   Pradesh,

Principal Seat at Jabalpur in Writ Appeal No. 667/2016,

by which the High Court has dismissed the said appeal,

original writ petitioner – appellant herein has preferred the

present appeal. 

2. The appellant herein was serving as a teacher. The dispute

arose   with   respect   to   the   age   of

1

superannuation/retirement,   namely,   whether,   the

appellant­teacher   is   entitled   to   get   the   benefits   of

enhanced  age of superannuation of 65 years at par with

his counterpart teachers serving in Government Colleges

and Universities. 

2.1 The   appellant   was  serving   in   1OO%   government   aided

private educational institution. At the relevant time, the

Full Bench of the High Court of Madhya Pradesh in the

case of Dr. S.C. Jain Vs. State of Madhya Pradesh and

others (W.A. No. 950/2015) took the view that the teachers

serving in the aided private educational institutions are

not   entitled   to   get   the   benefit   of   enhanced   age   of

superannuation of 65 years. The appellant and others filed

Writ   Appeals   before   the   High   Court   which   came   to   be

dismissed, relying upon the case of Dr. S.C. Jain (supra).

However, subsequently the decision of the Full Bench of

the High Court in the case of Dr. S.C. Jain (supra) has

been   set   aside   by   this   Court   vide   judgment   and   order

dated 07.05.2019 in C.A. No. 4675­4676 of 2019 in the

case of  Dr.   R.S.   Sohane   Vs.   State   of  M.P.   &   others;

2

(2019) 16 SCC 796, and it is held that the teachers like the

appellant are entitled to get the benefit of enhanced age of

superannuation of 65 years. The parties to the aforesaid

appeals filed M.A. Nos. 1838­1839 of 2019 with I.A. No.

119950 of 2019 before this Court claiming the payment of

outstanding salaries for the intervening period. This Court

disposed   of   the   aforesaid   interlocutory   application   and

clarified   that   they   can   approach   the   High   Court   for

redressal of their grievances with regard to the payment of

outstanding   salaries   of   intervening   period.   As   observed

hereinabove, the appeal preferred by the appellant before

the High Court has been dismissed by the Division Bench

of the High Court relying upon the decision of Full Court in

the case of Dr. S.C. Jain (supra), which has subsequently

been set aside by this Court. Therefore, it is the case on

behalf of the appellant that he shall be entitled to continue

up to enhanced age of superannuation i.e., 65 years and

shall be entitled to all the monetary benefits as if, he would

have been continued up to the age of 65 years. 

3

2.2 Learned counsel appearing on behalf of the appellant has

heavily relied upon the subsequent decision of the Division

Bench of the High Court dated 29.11.2019 passed in Writ

Appeal No. 1857/2019 filed by a similarly situated teacher

of a government aided private college by which the Division

Bench of the High Court has condoned 1227 days of delay

in filing intra­court appeal and has held him entitled for

superannuation   with   all   consequential   and   monetary

benefits including arrears of salaries and allowances of the

intervening period, by following the law laid down by this

Court in the case of Dr. R.S. Sohane (supra). 

2.3 Learned counsel appearing on behalf of the appellant has

also relied upon the common judgment and order dated

07.09.2021   passed   by   the   Division   Bench   of   the   High

Court   in   Writ   Appeal   No.   378/2018   and   other   allied

appeals,   by   which,   after   the   review   applications   were

allowed, the aforesaid writ appeals were restored to the file

and the Division Bench of the High Court has directed the

State to pay all the consequential and monetary benefits to

all similarly situated teachers and assistant professors for

4

the intervening period between 62 years and 65 years of

age. It is submitted that all similarly situated teachers are

therefore, paid all consequential and monetary benefits for

the period between 62 years and 65 years of age, as if they

would have been continued up to 65 years of age. 

3. Mrs. Mrinal Gopal Elker, learned counsel appearing on

behalf   of   the   respondent­   State,   as   such,   is   not   in   a

position to dispute the aforesaid factual aspects. However,

she has tried to distinguish the facts by submitting that

when this Court passed an order earlier to pay the salaries

to them after they had completed the age of 62 years, all of

them were directed to be taken on duty by way of an

interim order and actually they worked up to the age of 65

years. In the present case, the appellant did not work and

therefore on the principle of ‘no work no pay’, he is not

entitled   to   any   monetary   benefits   for   the   intervening

period, between 62 years and 65 years of age.

4. Having heard learned counsel appearing on behalf of the

respective   parties   and   considering   the   various   orders

passed by the High Court, by which in similar facts and

5

situation and not accepting the submission on behalf of

the State that on the principle of ‘no work no pay’ the

teachers are not entitled to any monetary benefits for the

intervening period between 62 years and 65 years of age,

we are of the opinion that appellant shall be entitled to all

consequential and monetary benefits including the arrears

of salaries and allowances for the intervening period, as if

he would have been retired at the age of 65 years. The

appellant   being   similarly   situated   teacher   cannot   be

singled out. Even in the case of Writ Appeal No. 378/2018

and other allied writ appeals, it was submitted by the State

that on the principle of ‘no work no pay’ such teachers are

not entitled to any monetary benefits. However, the High

Court vide detailed judgment and order has negated such

a plea and defence and has observed that as the teachers

were prevented from serving up to the age of 65 years

though they were entitled to, as held by this Court in the

case of Dr. R.S. Sohane (supra), they cannot be denied the

monetary benefits for the intervening period. It is reported

that the said judgment and order passed by the Division

Bench of the High Court has been implemented by the

6

State   after   the   Special   Leave   Petition   against   the   said

judgment and order has been dismissed by this Court.  

5. In view of the above discussion and for the reasons stated

above,   the   present   appeal   succeeds.   The   impugned

judgment and order passed by the Division Bench of the

High Court in W.A. No. 667/2016 is hereby quashed and

set aside, which was passed relying upon the decision of

Full Bench of High Court in W.A. No. 950/2015, which has

been subsequently set aside by this Court in the case of

Dr.   R.S.   Sohane  (supra).   It   is   held   that   the   appellant

herein   is   entitled   to   the   benefit   of   enhanced   age   of

superannuation i.e., 65 years. He shall be entitled to all

the consequential and monetary benefits including arrears

of salaries and etc., as if, he would have been continued

up to the age of 65 years. The arrears etc., shall be paid to

the appellant within a period of six weeks’ from today.

However, considering the fact that there was a huge delay

in preferring the appeal, which has been condoned by this

Court, the appellant shall not be entitled to any interest on

7

the arrears for the period between 09.05.2017 till the filing

of the present appeal. 

6. The present appeal is accordingly allowed.  In the facts and

circumstances of the case, there shall be no order as to

costs.

…………………………………J.

                (M. R. SHAH)

…………………………………J.

 (B.V. NAGARATHNA)

New Delhi, 

April 21, 2022.

8

imitation for invoking arbitration - legal notice was issued invoking arbitration clause after 32 years - barred by limitation . The appellant sent a legal notice through his advocate on 31.07.2019 invoking the arbitration clause and seeking appointment of an arbitrator by the office of the General Manager. However, the arbitrator was not appointed as per clauses 63 & 64 of GCC. The appellant hereafter filed the present Arbitration Petition before the High Court under Section 11(6) of the 1996 Act and prayed to appoint the arbitrator to resolve the dispute between the parties. By the impugned order, the High Court has dismissed the said application on the ground that the arbitration petition in 2019 is hopelessly barred by limitation.

limitation for invoking arbitration - legal notice was issued invoking arbitration clause after 32 years - barred by limitation . The appellant sent a legal notice through his advocate on 31.07.2019 invoking the arbitration clause and seeking appointment of an arbitrator by the office of the General Manager. However, the arbitrator was not appointed as per clauses 63 & 64 of GCC. The appellant hereafter filed the present Arbitration Petition before the High Court under Section 11(6) of the 1996 Act and prayed to appoint the arbitrator to resolve the dispute between the parties. By the impugned order, the High Court has dismissed the said application on the ground that the arbitration petition in 2019 is hopelessly barred by limitation.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2964 OF 2022

(Arising from SLP(Civil) No. 6386/2022)

Vishram Varu & Co. …Appellant

Versus

Union of India, represented by the

General Manager, South Eastern Railway, Kolkata …Respondent

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned order dated

19.03.2021 passed by the Calcutta High Court in Arbitration Petition No.

748/2019, by which the High Court has dismissed the said application

under Section 11(6) of the Arbitration and Conciliation Act, 1996

(hereinafter referred to as the ‘1996 Act’), preferred by the appellant

herein, the original applicant has preferred the present appeal.

2. That the appellant herein was issued work order in the year 1982.

That the work was executed in the year 1986. According to the

appellant herein, he executed excess quantity of work beyond the

schedule quantity of work to be done. Therefore, he was entitled to the

1

additional amount for the excess quantity of work done. It is the case

on behalf of the appellant that a lot of correspondence was made by the

appellant, however, the amount due and payable with respect to the

excess quantity of work done was not paid. The appellant through letter

dated 31.05.2018 requested the General Manager of South Eastern

Railway to release the amount due or refer the dispute to the arbitrator

under clauses 63 & 64 of General Conditions of Contract (GCC) under

the 1996 Act, however, no action was taken on the said letter.

Thereafter vide letter/communication dated 22.10.2018, again the same

request was made to the General Manager, South Eastern Railway

either to pay the amount which was overdue or refer the dispute to the

arbitrator, which was repeated vide communications dated 11.01.2019

and 11.03.2019. According to the appellant, thereafter the appellant

sent the Statement of Claim which was payable to him as per the work

order dated 7.4.1982 issued by the railway authorities, which was

executed up to 11.05.1986 and the work order dated 15.01.1984, which

was executed up to 26.08.1985. According to him, as per the statement

of claim, the total amount due and payable was Rs. 1,19,46,297/-.

2.1 Thereafter, the appellant sent a legal notice through his advocate

on 31.07.2019 invoking the arbitration clause and seeking appointment

of an arbitrator by the office of the General Manager. However, the

arbitrator was not appointed as per clauses 63 & 64 of GCC. The

2

appellant hereafter filed the present Arbitration Petition before the High

Court under Section 11(6) of the 1996 Act and prayed to appoint the

arbitrator to resolve the dispute between the parties. By the impugned

order, the High Court has dismissed the said application on the ground

that the arbitration petition in 2019 is hopelessly barred by limitation.

2.2 Feeling aggrieved and dissatisfied with the impugned order passed

by the High Court dismissing the arbitration petition under Section 11(6)

of the 1996 Act on the ground that it is barred by limitation, the original

applicant has preferred the present appeal.

3. Shri Pijush K. Roy, learned counsel appearing on behalf of the

appellant has vehemently submitted that the High Court has materially

erred in dismissing the arbitration petition under Section 11(6) of the

1996 Act on the ground of limitation.

3.1 It is submitted that from the date of issuing the legal notice

invoking the arbitration clause and after waiting for 30 days and

thereafter when the application under Section 11(6) of the 1996 Act was

made, the same cannot be said to be barred by limitation.

3.2 It is submitted that the cause of action to file the application under

Section 11(6) of the 1996 Act can be said to have arisen after

completion of 30 days of service of legal notice invoking the arbitration

clause and the request to appoint the arbitrator was made. It is therefore

submitted that from the date of issuance of legal notice invoking the

3

arbitration clause and after expiry of period of 30 days, the limitation

would start from the date of completion of 30 days from the date of

serving the legal notice invoking the arbitration clause. Heavy reliance is

placed on the decision of this Court in the case of Bharat Sanchar

Nigam Limited v. Nortel Networks India Private Limited, (2021) 5 SCC

738 (paragraphs 14 & 15). Relying upon the aforesaid decision, it is

submitted that as observed and held by this Court, none of the Articles in

the Schedule to the Limitation Act, 1963 provides a time period for filing

an application under Section 11(6) of the 1996 Act and therefore it would

be covered by the residual provision Article 137 of the Limitation Act

which provides the period of limitation of three years from the date when

the right to apply accrues.

3.3 It is submitted that in the present case, right to apply under Section

11(6) of the 1996 Act can be said to have accrued when the legal notice

invoking arbitration clause and the request to appoint the arbitrator by

the General Manager was made and the period of limitation would

commence after 30 days of serving the legal notice invoking the

arbitration clause and making a request to appoint arbitrator.

3.4 Making the above submissions, it is prayed to set aside the

impugned order passed by the High Court.

4. We have heard Shri Pijush K. Roy, learned counsel appearing for

the appellant at length.

4

At the outset, it is required to be noted that in the present case,

work order was issued on 7.4.1982 and the work/excess work was

completed in the year 1986. Even as per the statement of claim, the

amount due and payable was under work order dated 7.4.1982, which

was executed up to 11.05.1986 and work order dated 15.01.1984 which

was executed up to 26.8.1985. Therefore, right to claim the amount, due

and payable, if any, can be said to have accrued in the year 1985/1986.

Thereafter, the correspondences under the RTI Act had taken from the

year 2012 onwards. Thereafter, for the first time, the appellant served a

legal notice upon the General Manager, South Eastern Railway on

22.10.2018 requesting either to release the amount which was overdue

or to refer the dispute to the arbitrator under clauses 63 & 64 of GCC

under the 1996 Act. The aforesaid legal notice is thereafter followed by

three to four letters/communications and thereafter the appellant herein

filed the present application under Section 11(6) of the 1996 Act before

the High Court in the year 2019. Merely because for the claim/alleged

dues of 1985/1986, the legal notice calling upon the respondent to pay

the amount due and payable or to refer the dispute to the arbitrator is

made after a period of approximately thirty-two years, the appellant

cannot be permitted to say that the cause of action to file the application

under Section 11(6) of the 1996 Act had accrued in the year 2018/2019.

In the present case, the legal notice has been served and the arbitration

5

clause is invoked and request to appoint the arbitrator was made after a

period of approximately thirty-two years from the date of completion of

work. Therefore, the appellant, who served the legal notice invoking the

arbitration clause and requesting for appointment of an arbitrator after a

period of approximately thirty-two years, cannot contend that still his

application under Section 11(6) of the 1996 Act be considered as the

limitation would start from the date of serving the legal notice and after

completion of 30 days from the date of service of the legal notice and

invoking arbitration clause.

5. Now, so far as the reliance placed upon the decision of this Court

in the case of Bharat Sanchar Nigam Limited (supra) is concerned, the

said decision shall not be applicable to the facts of the case on hand. In

the aforesaid decision, the Court was not dealing with such a situation

where the legal notice was issued and served and the arbitration clause

was invoked after a period of thirty-two years. In the aforesaid decision,

this Court has not stated and/or observed and/or held that despite the

fact that the legal notice invoking the arbitration clause and/or request for

referring the dispute to the arbitrator is made after 20/30 years, still the

application under Section 11(6) of the 1996 Act can be entertained.

6. Therefore, in the facts and circumstances of the case, narrated

hereinabove, the High Court has not committed any error in dismissing

the application under Section 11(6) of the 1996 Act on the ground that it

6

is hopelessly barred by limitation and is a stale claim. We are in

complete agreement with the view taken by the High Court.

7. In view of the above and for the reasons stated above, the present

appeal fails and the same deserves to be dismissed and is accordingly

dismissed. There shall be no order as to costs.

……………………………….J.

[M.R. SHAH]

NEW DELHI; ……………………………….J.

APRIL 21, 2022. [B.V. NAGARATHNA]

7

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.

 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

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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

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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

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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

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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

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