Environment Protection Act, 1986 – Ex post facto environmental clearance – In the instant case, Appellant applied to Ministry of Environment, Forest and Climate Change, Government of India for grant of Environmental Clearance (EC) to establish steel plant at Bokara District – Appellant stated in its application that no forest land was involved in the project – After obtaining EC, the Appellant applied to the JSPCB, for grant of ‘Consent to Establish’ (CTE) under the Air (Prevention and Control of Pollution) Act, 1981 - The JSPCB granted CTE to the Appellant to establish steel plant – Even though CTE was granted to the Appellant to establish a steel plant at Bokaro District, the Appellant established it 5.3 Kms away from the permitted site - CTE was extended from time to time – However, JSPCB issued an order revoking EC of the appellant on the ground that appellant had encroached upon forest land and shifted its location there by violating the conditions of EC – Appellant filed writ petition before High Court in which High Court passed an interim order staying the operation, implementation and execution of the order of JSPCB which was extended time to time – In the meanwhile, Appellant applied for ex post facto Forest Clearance (FC) which was also claimed before the High Court However, after final hearing, High Court passed the order of discontinuing the earlier interim orders – On Appeal, Held: The 1986 Act does not prohibit ex post facto Environmental Clearance – Ex post facto environmental clearance should not however be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors – Ex post facto approval should not be withheld only as a penal measure – In present facts, steel plant was not started without EC or consent of JSPCB – Appellant had asserted that no part of steel plant is in any forest which MoEF had also confirmed - Appellant had duly applied for ex post fact forest clearance approval without prejudice to its rights and contentions that its steel plant is not on forest land – An establishment contributing to the economy and providing livelihood to hundreds of people should not be closed down for technical irregularity of shifting its site without prior EC – JSPCB was directed to take action on the application of the appellant for revised EC in accordance with law - High Court erred in vacating interim orders which had been in force for two years.
Allowing the appeals, the Court
HELD: 1. 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. [Para 82][885-D-E]
2. 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. [Para 84][885-G-H; 886-A-B]
3. Ex post facto environmental clearance should not however be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of ex post facto approval outweigh the consequences of regularization of operation of an industry by grant of ex post facto approval and the industry or establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. Ex post facto approval should not be withheld only as a penal measure. The deviant industry may be penalised by an imposition of heavy penalty on the principle of ‘polluter pays’ and the cost of restoration of environment may be recovered from it. [Para 87][891-G-H; 892-A-B]
4. This Court held that the High Court erred in passing the impugned order, vacating interim orders which had been in force for two years. The impugned order is not in conformity with the principle of proportionality. This is not a case where the steel plant was started without environmental clearance or consent of JSPCB. The Appellant had applied for and obtained environmental clearance to set up an integrated steel plant (3MTPA) on 1350 acres of land at Mauza South Parbatpur, as observed above. Environmental Clearance had been granted on 21st February 2008 and Consent to Operate had been granted by JSPCB on 5th May 2008. In passing the impugned order the High Court overlooked the consequences of closure of an integrated steel plant with a work force of 300 regular and 700 contractual workers. The High Court also failed to appreciate that the judgment of this Court in Alembic Pharmaceuticals was distinguishable on facts. Furthermore, continuance of the interim orders allowing operation of an industrial establishment or even the grant of revised EC to the industrial establishment cannot stand in the way of action against that establishment for contraventions, including the imposition of penalty, on the principle ‘polluter pays’. JSPCB is directed to take a decision on the application of the appellant for revised EC in accordance with law within three months. [Paras 88, 94, 95][892-B-D; 893-E-F; 894-A] Indian Council for Enviro-Legal Action and Ors. v. Union of India and Ors. (1996) 3 SCC 212 : [1996] 2 SCR 503 Alembic Pharmaceuticals Ltd. v. Rohit Prajapati and Others 2020 SCC OnLine SC 347;
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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