National Green Tribunal Act, 2010 : s. 22 – Micro, Small and Medium Enterprises Development Act, 2006 – Environment (Protection) Act, 1986 – Environment (Protection) Rules, 1986 – Environment clearance – Grant of – Ex post facto environment clearance – Appellants engaged in manufacture and sale of basic organic chemicals – Appellant granted Consent to Establish (CTE) and Consent to Operate (CTO) for its unit by State Pollution Control Board-HSPCB – Subsequently, the Government issued a Notification which provides for grant of ex post facto Environmental clearanceEC for project proponents who had commenced, continued or completed a project without obtaining EC – Thereafter, issuance of an order by the State Government where the units which did not have EC, be allowed to continue their operations for a period of six months, with the conditions that they would apply for EC – Respondent No.1 then filed a petition seeking quashing of the said order and units operating without EC be closed – NGT held that the manufacturing units of the appellants, which did not have prior EC could not be allowed to operate – On appeal, held: 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 not be closed down for the technical irregularity of want of prior 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 – More so, the HSPCB was itself under the misconception that no environment clearance was required for the units in question – 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 – Impugned order is set aside – Appellants would be allowed to operate the units.
Allowing the appeal, the Court
HELD: 1.1 It is 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. [Para 47][877-B-D]
1.2 The Division Bench of the High Court erred 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 48][877-D-E]
1.3 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 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. [Para 54][878-H; 879-A]
1.4 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 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 57][881-A-C]
1.5 There can be no doubt that the need to comply with the requirement to obtain EC is non–negotiable. A unit can be set up or allowed to expand subject to compliance of the requisite environmental norms. EC is granted on condition of the suitability of the site to set up the unit, from the environmental angle, and also existence of necessary infrastructural facilities and equipment for compliance of environmental norms. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced. Under no circumstances can industries, which pollute, be allowed to operate unchecked and degrade the environment. [Para 62][883-B-D]
1.6 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. [Para 63][883-D-F]
1.7 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 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 said 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. [Para 64][883-F-H; 884-A-B]
1.8 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 that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate. [Para 66][884-D]
1.9 The appellants would be allowed to operate the units. Electricity, if disconnected, shall be restored subject to payment of charges. [Para 68][884-G]
Shree Sidhbali Steels Ltd. & Others v. State of Uttar Pradesh & Others (2011) 3 SCC 193 : [2011] 3 SCR 134; Fatima v. Union of India 2020 SCC Online SC 347; Puducherry Environment Protection Association v. Union of India 2017 SCC OnLine Mad 7056;
Electrosteel Steels Limited v. Union of India 2021 SCC Online SC 1247; Lafarge Umiam Mining Private Limited v. Union of India (2011) 7 SCC 338 : [2011] 7 SCR
954 – referred to.
Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Others 2020 SCC Online SC 347 – distinguished.
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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