National Green Tribunal Act, 2010: s. 22 – Environmental Impact Assessment Notification 2006 – Ex Post facto Environmental clearance (EC) – Respondent No.3 applied to the respondent no.1State Pollution Control Board for consent to establish a Common Bio-Medical Waste Treatment Facility – Respondent no.1 accorded consent – Thereafter, in terms of amended Entry 7(da) of the Notification of 2006, the Bio-Medical Waste Treatment Facilities were required to obtain EC from the Ministry of Environment and Forests-MOEF – Representation by villagers seeking order banning establishment of Common Bio-Medical Waste Treatment Facility by respondent No. 3 – Respondent No.1 then issued notices to the respondent No.3, calling upon it to submit a report of compliance of pollution norms – Pursuant thereto, instructions by the respondent no. 1 that the application for consent to be accompanied with EC – Respondent no 3 re-submitted its application for consent which had earlier been rturned – Respondent No.1 granted the respondent No.3 consent to operate its Common Bio-Medical Waste Treatment Facility – Appellant challenged the consent granted to the respondent no.3 and sought direction for closure of the Common Bio-Medical Waste Treatment Facility run by the respondent No.3, on the ground of alleged non-compliance of the provisions of the notification of 2006, as amended – Dismissal of the application by NGT – Meanwhile, the Central Government issued a Notification which provided 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 Notification – On appeal, held: Need to comply with the requirement to obtain EC is nonnegotiable – However, the EP Act does not prohibit ex post facto EC – Ex post facto environmental clearance should ordinarily not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors – Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given – Operation of a Bio-Medical Waste Treatment Facility is in the interest of prevention of environmental pollution – Closure of the facility only on the ground of want of prior Environmental Clearance would be against public interest – Thus, no grounds to interfere with the judgment and order of the NGT – Water (Prevention and Control of Pollution) Act, 1974 – Air (Prevention and Control of Pollution) Act, 1981.
Dismissing the appeal, the Court
HELD: 1.1 The SoP was formulated by the said Office Memorandum dated 7th July 2021. 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. [Para 31 and 32][559-C-D]
1.2 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. [Para 36][562-D-E]
1.3 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.’s case, 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. [Para 37][562-F-H]
1.4 Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of a Notification under the EP Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of mines, running factories and plants. [Para 40][564-G-H]
1.5 The EP Act does not prohibit ex post facto Environmental Clearance. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is 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. [Para 41][564-A-B]
1.6 The need to comply with the requirement to obtain EC is non-negotiable. A unit can be set up or allowed to expand subject to compliance of the requisite environmental norms. EC is granted on condition of the suitability of the site to set up the unit, from the environmental angle, and also existence of necessary infrastructural facilities and equipment for compliance of environmental norms. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced. Under no circumstances can industries, which pollute, be allowed to operate unchecked and degrade the environment. [Para 46][567-B-D]
1.7 Ex post facto environmental clearance should ordinarily not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. In a given case, the deviant industry may be penalised by an imposition of heavy penalty on the principle of ‘polluter pays’ and the cost of restoration of environment may be recovered from it. [Para 47][567-D-F]
1.8 The EP Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible. This Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units for their survival. [Para 48][567-F-H]
1.9 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. [Para 49][568-A-B]
1.10 The NGT rightly found that when the Bio-Medical Waste Treatment facility of the appellant was being operated with the requisite consent to operate, it could not be closed on the ground of want of prior Environmental Clearance. This Court cannot lose sight of the fact that the operation of a Bio-Medical Waste Treatment Facility is in the interest of prevention of environmental pollution. The closure of the facility only on the ground of want of prior Environmental Clearance would be against public interest. There are no grounds to interfere with the judgment and order of the NGT in appeal as rightly argued by KSPCB and the Respondent No.3. The appeal is barred by delay. In any case, the appeal does not raise any substantial question of law. [Para 50][568-B-D]
Electrosteel Steels Limited v. Union of India 2021 SCC OnLine SC 1247 – relied on.
Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Others 2020 SCC OnLine SC 347 – distinguished. Shree Sidhbali Steels Ltd. & Others v. State of Uttar Pradesh & Others (2011) 3 SCC 193 : [2011] 3 SCR 134; Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 : [2000] 4 Suppl. SCR 94; Fatima v. Union of India) ; Puducherry Environment Protection Association v. Union of India 2017 SCC OnLine Mad 7056; Pahwa Plastics Pvt. Ltd. and Anr. v. Dastak NGO and Ors. 2022 SCC Online SC 362; Lafarge Umiam Mining Private Limited v. Union of India (2011) 7 SCC
338 : [2011] 7 SCR 954 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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