D. SWAMY versus KARNATAKA STATE POLLUTION CONTROL BOARD AND ORS

D. SWAMY

KARNATAKA STATE POLLUTION CONTROL BOARD ANDORS.

(Civil Appeal No. 3132 of 2018)

SEPTEMBER 22, 2022

[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]

National Green Tribunal Act, 2010: s. 22 – EnvironmentalImpact Assessment Notification 2006 – Ex Post facto Environmentalclearance (EC) – Respondent No.3 applied to the respondent no.1-State Pollution Control Board for consent to establish CommonBio-Medical Waste Treatment Facility – Respondent no.1 accordedconsent – Thereafter, in terms of amended Entry 7(da) of theNotification of 2006, the Bio-Medical Waste Treatment Facilitieswere required to obtain EC from the Ministry of Environment andForests-MOEF – Representation by villagers seeking order banningestablishment of Common Bio-Medical Waste Treatment Facility byrespondent No. 3 – Respondent No.1 then issued notices to therespondent No.3, calling upon it to submit report of complianceof pollution norms – Pursuant thereto, instructions by the respondentno. 1 that the application for consent to be accompanied with EC –Respondent no 3 re-submitted its application for consent which hadearlier been rturned – Respondent No.1 granted the respondentNo.3 consent to operate its Common Bio-Medical Waste TreatmentFacility – Appellant challenged the consent granted to the respondentno.3 and sought direction for closure of the Common Bio-MedicalWaste Treatment Facility run by the respondent No.3, on the groundof alleged non-compliance of the provisions of the notification of2006, as amended – Dismissal of the application by NGT –Meanwhile, the Central Government issued Notification whichprovided for grant of ex post facto EC for project proponents whohad commenced, continued or completed project without obtainingEC under the EP Act/EP Rules or the Notification – On appeal,held: Need to comply with the requirement to obtain EC is non-negotiable – However, the EP Act does not prohibit ex post factoEC – Ex post facto environmental clearance should ordinarily notbe granted routinely, but in exceptional circumstances taking into

Aaccount all relevant environmental factors – Where the adverseconsequences of denial of ex post facto approval outweigh theconsequences of regularization of operations by grant of ex postfacto approval, and the establishment concerned otherwise conformsto the requisite pollution norms, ex post facto approval should begiven – Operation of Bio-Medical Waste Treatment Facility is inBthe interest of prevention of environmental pollution – Closure ofthe facility only on the ground of want of prior EnvironmentalClearance would be against public interest – Thus, no grounds tointerfere with the judgment and order of the NGT – Water (Preventionand Control of Pollution) Act, 1974 – Air (Prevention and ControlCof Pollution) Act, 1981.

Dismissing the appeal, the Court

HELD: 1.1 The SoP was formulated by the said OfficeMemorandum dated 7th July 2021. In terms of the SoP, theproposal for grant of EC in cases of violation are to be consideredDon merits, with prospective effect, applying principles ofproportionality and the principle that the polluter pays and is liablefor costs of remedial measures. [Para 31 and 32][559-C-D]

1.2 Words and phrases and/or sentences in judgmentcannot be read in the manner of statute, and that too out ofEcontext. The observation of the Division Bench that one timerelaxation was permissible, is not to be construed as findingthat relaxation cannot be made more than once. If power to amendor modify or relax notification and/or order exists, the notificationand/or order may be amended and/or modified as many times, asFmay be necessary. [Para 36][562-D-E]

1.3 The Division Bench of Madras High Court fell in errorin staying the said office memorandum, by relying on observationsmade by this Court in Alembic Pharmaceuticals Ltd.’s case, in thecontext of circular which was contrary to the statutoryGEnvironment Impact Notification of 1994. The attention of theHigh Court was perhaps not drawn to the fact that the notificationof 7th July 2021 was in pursuance of the statutory notification of2017 which was valid. [Para 37][562-F-H]

1.4 Ex post facto EC should not ordinarily be granted, andcertainly not for the asking. At the same time ex post factoclearances and/or approvals and/or removal of technicalirregularities in terms of Notification under the EP Act cannotbe declined with pedantic rigidity, oblivious of the consequencesof stopping the operation of mines, running factories and plants.[Para 40][564-G-H]

1.5 The EP Act does not prohibit ex post factoEnvironmental Clearance. Grant of ex post facto EC in accordancewith law, in strict compliance with Rules, Regulations,Notifications and/or applicable orders, in appropriate cases, wherethe projects are in compliance with, or can be made to complywith environment norms, is not impermissible. The Court cannotbe oblivious to the economy or the need to protect the livelihoodof hundreds of employees and others employed in the projectand others dependent on the project, if such projects comply withenvironmental norms. [Para 41][564-A-B]

1.6 The need to comply with the requirement to obtain ECis non-negotiable. unit can be set up or allowed to expandsubject to compliance of the requisite environmental norms. ECis granted on condition of the suitability of the site to set up theunit, from the environmental angle, and also existence ofnecessary infrastructural facilities and equipment for complianceof environmental norms. To protect future generations and toensure sustainable development, it is imperative that pollutionlaws be strictly enforced. Under no circumstances can industries,which pollute, be allowed to operate unchecked and degrade theenvironment. [Para 46][567-B-D]

1.7 Ex post facto environmental clearance should ordinarilynot be granted routinely, but in exceptional circumstances takinginto account all relevant environmental factors. Where theadverse consequences of denial of ex post facto approval outweighthe consequences of regularization of operations by grant of expost facto approval, and the establishment concerned otherwiseconforms to the requisite pollution norms, ex post facto approvalshould be given in accordance with law, in strict conformity with

Athe applicable Rules, Regulations and/or Notifications. In givencase, the deviant industry may be penalised by an imposition ofheavy penalty on the principle of ‘polluter pays’ and the cost ofrestoration of environment may be recovered from it. [Para47][567-D-F]B1.8 The EP Act does not prohibit ex post facto EC. Somerelaxations and even grant of ex post facto EC in accordancewith law, in strict compliance with Rules, Regulations,Notifications and/or applicable orders, in appropriate cases, wherethe projects are in compliance with environment norms, is notimpermissible. This Court cannot be oblivious to the economyCor the need to protect the livelihood of hundreds of employeesand others employed in the units and dependent on the units fortheir survival. [Para 48][567-F-H]1.9 Ex post facto EC should not ordinarily be granted, andcertainly not for the asking. At the same time ex post factoDclearances and/or approvals cannot be declined with pedanticrigidity, regardless of the consequences of stopping theoperations. [Para 49][568-A-B]

1.10 The NGT rightly found that when the Bio-MedicalWaste Treatment facility of the appellant was being operated withEthe requisite consent to operate, it could not be closed on theground of want of prior Environmental Clearance. This Courtcannot lose sight of the fact that the operation of Bio-MedicalWaste Treatment Facility is in the interest of prevention ofenvironmental pollution. The closure of the facility only on theFground of want of prior Environmental Clearance would be againstpublic interest. There are no grounds to interfere with thejudgment and order of the NGT in appeal as rightly argued byKSPCB and the Respondent No.3. The appeal is barred by delay.In any case, the appeal does not raise any substantial question oflaw. [Para 50][568-B-D]GElectrosteel Steels Limited v. Union of India 2021 SCCOnLine SC 1247 – relied on.

Alembic Pharmaceuticals Ltd. v. Rohit Prajapati &Others 2020 SCC OnLine SC 347 – distinguished.

D. SWAMY V. KARNATAKA STATE POLLUTION CONTROLBOARD AND ORS.

Shree Sidhbali Steels Ltd. & Others v. State of UttarPradesh & Others (2011) 3 SCC 193 : [2011] 3 SCR134; Narmada Bachao Andolan v. Union of India(2000) 10 SCC 664 : [2000] 4 Suppl. SCR 94; Fatimav. Union of India) ; Puducherry Environment ProtectionAssociation v. Union of India 2017 SCC OnLine Mad7056; Pahwa Plastics Pvt. Ltd. and Anr. v. Dastak NGOand Ors. 2022 SCC Online SC 362; Lafarge UmiamMining Private Limited v. Union of India (2011) 7 SCC338 : [2011] 7 SCR 954 - referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3132of 2018.

From the Judgment and Order dated 10.05.2017 of the NationalGreen Tribunal, Southern Zone, Chennai in Application No.169/2016(SZ).

Anand Sanjay M. Nuli, Suraj Kaushik, Agam Sharma, DharmSingh for M/s Nuli & Nuli, Advs. for the Appellant.

S. J. Amith, Purushottam Sharma Tripathi, Mukesh Kumar Singh,Ms. Mani Vyas, Advs. for the Respondents.

The Judgment of the Court was delivered by

INDIRA BANERJEE, J.

This appeal, under Section 22 of the National Green Tribunal Act2010, is against final order dated 10[th] May 2017 passed by the NationalGreen Tribunal, Southern Zone, Chennai, dismissing the ApplicationNo.169 of 2016 (SZ) filed by the Appellant under Section 18(1) readwith Section 14 of the National Green Tribunal Act 2010, whereby theAppellant had prayed for direction for closure of the Common Bio-Medical Waste Treatment Facility run by the Respondent No.3, on theground of alleged non-compliance of the provisions of the EnvironmentalImpact Assessment Notification 2006, hereinafter referred to as “the2006 EIA Notification” as amended on 17[th] April 2015.

A2. In the meanwhile, by notification being S.O. 327 (E) dated10[th] April 2001, published in the Gazette of India on 12[th] April 2001, theCentral Government has delegated the powers vested in it under theEnvironment (Protection) Act, 1986 (EP Act) to the Chairpersons of therespective State Pollution Control Boards/Committees to issue directionsto any industry or any local or other authority to prevent violation of theBRules.

3. On or about 25[th] February 2012, the Respondent No.3 appliedto the Respondent No.1, Karnataka State Pollution Control Board(hereinafter referred to as “KSPCB”) for consent to establish CommonBio-Medical Waste Treatment Facility over the land bearing Survey No.C82 and 38/2 at Gujjegowdanapura village, Jayapura Hobli, Mysore Talukand District.

4. By letter dated 24[th] November 2012, the Respondent No.1KSPCB accorded consent to the Respondent No.3 to establish theCommon Bio-Medical Waste Treatment Facility under the provisions ofDthe Water (Prevention and Control of Pollution) Act, 1974 and the Air(Prevention and Control of Pollution) Act, 1981 for collection, reception,transportation, treatment and disposal of Bio-Medical Waste. The saidconsent was valid for period of five years.

5. It appears that M/s Shree Consultant who had been operatingEa Common Bio-Medical Waste Treatment Facility at Survey No.25 atMysore and had been collecting Bio-Medical Waste from four districtscould not collect Bio-Medical Waste from the district of Hassan becauseof the Common Bio-Medical Waste Treatment Facility established bythe Respondent No.3.

F6. M/s Shree Consultant filed appeals bearing Nos.48 and 49 of2012 before the Karnataka State Environment Appellate Authority,Bangalore challenging the consent granted to the Respondent No.3 toestablish the Common Bio-Medical Waste Treatment Facility. TheKarnataka State Environment Appellate Authority, Bangalore grantedan interim stay of the order granting consent to the Respondent No.3 toGestablish the Common Bio-Medical Waste Treatment Facility. Ultimatelyhowever, the appeal was dismissed by common judgment and orderdated 20[th] April 2013.

7. M/s Shree Consultant filed Appeal Nos. 46-47 of 2013 beforethe National Green Tribunal, Southern Zone, Chennai against the commonHjudgment and order dated 20[th] April 2013 passed by the Karnataka State

Environment Appellate Authority, Bangalore in Appeal Nos.48-49 of2012.

8. By judgment and order dated 28[th] November 2013, thePrincipal Bench of the National Green Tribunal at New Delhi held thatBio-Medical Waste Treatment Plants were required to obtain anEnvironmental Clearance (EC) from the Ministry of Environment andForests, Government of India, hereinafter referred to as “MoEF&CC”,in terms of Entry 7(d) of the Notification dated 14[th] September 2006.The National Green Tribunal had also directed the parties who had beenrunning Common Bio-Medical Waste Treatment Facilities to apply tothe MoEF&CC for EC.

9. On 26[th] February 2014, the Central Pollution Control Boardissued guidelines for Common Bio-Medical Waste Treatment Facilities.On 14[th] July 2014, the National Green Tribunal, Southern Zone, Chennaipassed judgment and order dismissing Appeal Nos. 46-47 of 2013 filedby M/s Shree Consultant and held that the Respondent No.1 had rightlygiven consent to the Respondent No.3 for establishing its Common Bio-Medical Waste Treatment Facility.

10. On 4[th] March 2015, the Respondent No.3 applied for grant ofconsent to operate the Common Bio-Medical Waste Facility under theprovisions of the relevant Water Pollution and Air Pollution Acts.

11. On 17[th] April 2015, MoEF&CC amended the Notification dated14[th] September 2006, in view of the Judgment dated 28[th] November2013 passed by the National Green Tribunal, Principal Bench, New Delhiin Appeal No. 63 of 2012. By the amendment Entry 7(da) was insertedafter Entry 7(d) in the Schedule. Entry 7(da) provided that CommonBio-Medical Waste Treatment Facilities would be required to obtain ECfrom the Ministry of Environment and Forest.

12. It appears that on 13[th] July 2015, the villagers of theGujjegowdanapura, Manadalli, Harohalli, Chunchunarayahundi, Kallahalli,Arinakere, Mahadevpura at Jayapura Hobli, Mysore made arepresentation to the Respondent No.1 seeking an order banning theestablishment of Common Bio-Medical Waste Treatment Facility by theRespondent No.3.

13. Thereafter, the Respondent No.1 issued notices to the CommonBio-Medical Waste Treatment Facility of the Respondent No.3, callingupon it to submit report of compliance of pollution norms.

14. On 1[st] December 2015, the State Level Environment ImpactAssessment Authority, Karnataka (SEIAA) issued directions to theRespondent No.1 under Section 5 of the Environment (Protection) Act,1986 to issue consent for operation of the Common Bio-Medical WasteTreatment Facility and other projects attracting the 2006 EIA Notificationand the amendments thereto.

15. By its letter dated 28[th] December 2015, the Respondent No.1instructed all the concerned officers of the KSPCB that application forconsent to establish or operate projects attracting the 2006 EIANotification and amendments thereto were to be received by the KSPCBonly if EC was attached to the application.

16. On 19[th] January 2016, the Respondent No.3 resubmitted itsapplication for consent to operate the Common Bio-Medical WasteTreatment Facility, which had earlier been returned by the RespondentNo.1. On 11[th] February 2016, the Respondent No.1 granted theRespondent No.3 consent to operate its Common Bio-Medical WasteDTreatment Facility at Gujjegowdanapura village, Jayapura Hobli in Mysoredistrict. The said consent was valid for the period from 1[st] July 2015 to30[th] June 2016.

17. The Appellant filed Appeal No.3 of 2016 before the KarnatakaState Environment Appellate Authority under Section 28 of the WaterE(Prevention and Control of Pollution) Act, 1974 challenging the consentto the Respondent No.3 to operate the Common Bio-Medical WasteTreatment Facility. Very soon thereafter the MoEF&CC revised theBio-Medical Waste (Management and Handling) Rules 1998 underSection 6, 8 and 25 of the EP Act.

18. The Appeal No.3 of 2016 filed by the Appellant before theKarnataka State Environment Appellate Authority, against the consentorder dated 11[th] February 2016 passed by the Respondent No.1 came tobe withdrawn by the Appellant because the said appeal had becomeinfructuous in view of the expiration of the period of consent to operateGgranted to the Respondent No.3 on 30[th] June 2016.

19. By an order dated 17[th] August 2016, the National GreenTribunal, Southern Zone, Chennai directed that the application for renewalof consent to operate, pending before the Respondent No.1 might beprocessed in accordance with law subject to the final order passed bythe Tribunal.

20. Pursuant to the aforesaid order dated 17[th] August 2016, theRespondent No.1 renewed the consent order to operate the CommonBio-Medical Waste Treatment Facility in favour of the Respondent No.3which was valid for the period from 17[th] August 2016 to 30[th] June 2021.

21. 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 CentralGovernment issued Notification being S.O. 804(E) dated 14[th] March2017 which provides for grant of ex post facto EC for project proponentswho had commenced, continued or completed project without obtainingEC under the EP Act/EP Rules or the Environmental Impact Notificationissued thereunder. Paragraphs 3, 4 and 5 of the said notification, read ashereunder:

“(3) In cases of violation, action will be taken against theproject proponent by the respective State or State PollutionControl Board under the provisions of section 19 of theEnvironment (Protection) Act, 1986 and further, no consentto operate or occupancy certificate will be issued till theproject is granted the environmental clearance.

(4) The cases of violation will be appraised by respective sectorExpert Appraisal Committees constituted under sub-section(3) of Section 3 of the Environment (Protection) Act, 1986with view to assess that the project has been constructed ata site which under prevailing laws is permissible andexpansion has been done which can be run sustainably undercompliance of environmental norms with adequateenvironmental safeguards; and in case, where the finding ofthe Expert Appraisal Committee is negative, closure of theproject will be recommended along with other actions underthe law.

(5) In case, where the findings of the Expert AppraisalCommittee on point at sub-para(4) above are affirmative, theprojects under this category will be prescribed the appropriateTerms of Reference for undertaking Environment ImpactAssessment and preparation of Environment ManagementPlan. Further, the Expert Appraisal Committee will prescribea specific Terms of Reference for the project on assessmentof ecological damage, remediation plan and natural and

Acommunity resource augmentation plan and it shall be preparedas an independent chapter in the environment impactassessment report by the accredited consultants. The collectionand analysis of data for assessment of ecological damage,preparation of remediation plan and natural and communityresource augmentation plan shall be done by an environmentalBlaboratory duly notified under Environment (Protection) Act,1986, or environmental laboratory accredited by NationalAccreditation Board for Testing and Calibration Laboratories,

or laboratory of Council of Scientific and IndustrialResearch institution working in the field of environment.”C

22. The Notification of 2017 is valid statutory notification issuedby 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 thesame manner as the EIA Notification dated 27th January 1994 and theNotification dated 14th September 2006.D

23. Section 21 of the General Clauses Act, 1897 provides thatwhere any Central Act or Regulations confer power to issuenotifications, orders, rules or bye-laws, that power includes the power,exercisable in the like manner, and subject to like sanction and conditions,if any, to add to, amend, vary or rescind any notification, order, rule orEbye-law so issued. The authority, which had the power to issueNotifications dated 27[th] January 1994 and 14[th] September 2006undoubtedly had, and still has the power to rescind or modify or amendthose notifications in like manner. As held by this Court in Shree SidhbaliSteels Ltd. & Others v. State of Uttar Pradesh & Others[1], powerunder Section 21 of the General Clauses Act to amend, vary or rescindFnotifications, orders, rules or bye-laws can be exercised from time totime having regard to the exigency.

24. Puducherry Environment Protection Association filed WritPetition being W.P. No.11189 of 2017 in the High Court of Madrasassailing the said notification dated 14[th] March 2017. By judgmentGand order dated 13[th] October 2017, Division Bench of the High Courtrefused to interfere with the said notification, holding that the impugnednotification did not compromise with the need to preserve environmentalpurity.

H1 (2011) 3 SCC 193

25. The MoEF&CC issued draft Notification dated 23[rd] March2020 which was duly published in the Gazette of India ExtraordinaryPart II. The Notification was proposed to be issued in exercise of powersconferred by subsection (1) and clause (v) of sub-section (2) of Section3 of the EP Act for dealing with cases of violation of the notification withregard to EC. It was proposed that cases of violation would be appraisedby the Appraisal Committee with view to assess whether the projecthad been constructed or operated at site which was permissible underprevailing laws and could be run sustainably on compliance ofenvironmental norms with adequate environmental safeguards. Closurewas to be recommended if the findings of the Appraisal Committee werein the negative. If the Appraisal Committee found that such unit hadbeen running sustainably upon compliance of environmental norms withadequate environment safeguards, the unit would be prescribedappropriate Terms of Reference (TOR) after which the procedure forgrant of EC would follow.

26. The appeal has been opposed by the KSPCB. On behalf ofthe KSPCB, it is submitted that the appeal is liable to be dismissed onthe ground of delay of 62 days in filing the appeal. Reasons for the delay,it is submitted, does not make out sufficient cause for the inordinatedelay. It is next contented that there is no substantial question of law ofgeneral importance involved in this appeal. The appeal is liable to bedismissed on that ground. It is also contended that the appeal suffersfrom suppression of facts. On behalf of KSPCB, it is contended that the2015 amendment dated 17[th] April 2015 to the EIA Notification isprospective in the light of the law laid down in Narmada BachaoAndolan v. Union of India[2]. The Respondent No.3 had applied to theKSPCB for consent to operate before the EIA Notification dated 17[th]April 2015, for no prior ECl was required for projects which came toexistence after 14[th] September 2006 but before 17[th] April 2015.

27. On 21[st] December 2016, the Central Pollution Control Board,MoEF&CC, Government of India issued revised guidelines for CommonBio-Medical Wastes Treatment and Disposal Facility.

28. By final judgment and order dated 10[th] May 2017, which isimpugned in this appeal, the National Green Tribunal has dismissed theappeal filed by the Appellant, with the observation that the RespondentNo.3 could not be directed to be closed down for want of EC.

29. 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 2006 EIANotification.

30. The said Office Memorandum, inter alia, reads:

“The Ministry had issued notification number S.O.804(E),dated the 14[th] March, 2017 detailing the process for grant ofTerms of Reference and Environmental Clearance in respectof projects or activities which have started the work on siteand/or expanded the production beyond the limit of Prior ECor changed the product mix without obtaining Prior EC underthe EIA Notification, 2006.

2. This Notification was applicable for six months from thedate of publication i.e. 14.03.2017 to 13.09.2017 and furtherbased on court direction from 14.03.2018 to 13.04.2018.

3. Hon’ble NGT in Original Application No.287 of 2020 inthe matter of Dastak N.G.O. v Synochem Organics Pvt. Ltd.& Ors. and in applications pertaining to same subject matterin Original Application No. 298 of 2020 in Vineet Nagar vCentral Ground Water Authority & Ors., vide order dated03.06.2021 held that “(...) for past violations, the concernedauthorities are free to take appropriate action in accordancewith 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. ChiefSecretary, Government of Maharashtra and Ors., vide orderdated 24.05.2021 has directed that”.... proper SoP be laiddown for grant of EC in such cases so as to address the gapsin binding law and practice being currently followed. TheMoEF may also consider circulating such SoP to all SEIAAsin the country”.

5. Therefore, in compliance to the directions of the Hon’bleNGT Standard Operating Procedure (SoP) for dealing withviolation cases is required to be drawn. The Ministry is alsoseized of different categories of ‘violation’ cases which havebeen pending for want of an approved structural/proceduralframework based on ‘Polluter Pays Principle’ and ‘Principle

D. SWAMY V. KARNATAKA STATE POLLUTION CONTROLBOARD AND ORS. [INDIRA BANERJEE, J.]

of Proportionality’. It is undoubtedly important that actionunder statutory provisions is taken against the defaulters/violators and decision on the closure of the project oractivity or otherwise is taken expeditiously.

6. In the light of the above directions of the Hon’ble Tribunaland the issues involved, the matter has accordingly beenexamined in detail in the Ministry. detailed SoP hasaccordingly been framed and is outlined herein. The SoP isalso guided by the observations/decisions of the Hon’bleCourts wherein principles of proportionality and polluterspay have been outlined.”

31. The SoP formulated by the said Office Memorandum dated7[th] July 2021 refers to and gives effect to various judicial pronouncementsincluding the judgment of this Court in Alembic Pharmaceuticals Ltd.v. Rohit Prajapati & Others[3].

32. In terms of the SoP, the proposal for grant of EC in cases ofviolation are to be considered on merits, with prospective effect, applyingprinciples of proportionality and the principle that the polluter pays and isliable for costs of remedial measures.

33. Public Interest Litigation being W.P. (MD) No. 11757 of2021 (Fatima v. Union of India) was filed before the Madurai Benchof the Madras High Court challenging the said Memorandum dated 7[th]July 2021. By an interim order dated 15[th] July 2021 Division Bench ofthe Madras High Court admitted the Writ Petition and stayed the saidmemorandum.

34. The Madurai Bench of the Madras High Court observed andheld:-

“This writ petition has been filed as public interest litigationchallenging the validity of the office memorandum dated07.07.2021, issued by the respondent.

2. We have heard Mr. A. Yogeshwaran, learned counselappearing for the writ petitioner and Mr.L.Victoria Gowri,learned Assistant Solicitor General of India, accepts noticefor the respondent.

3 2020 SCC OnLine SC 347

3. The impugned office memorandum is challenged as beingwholly without jurisdiction, contrary to the EnvironmentImpact Assessment Notification, 2006, ultra vires the powersof the respondent under the Environment (Protection) Act,1986 and violative of the various principles enunciated bythe Hon’ble Supreme Court, while interpreting Article 21 andArticle 48-A of the Constitution of India.

4. Further, it is submitted that the impugned notification is ingross violation of the undertaking given before the Hon’bleFull Bench of this Court in W.P.No.11189 of 2017, wherein,the Court took note of the submissions made on behalf of theGovernment of India, that the notification impugned thereinis only one-time measure. Further, it is submitted that therespondent failed to see that concept of ex-post facto approvalis alien to environment jurisprudence and it is anathema tothe Environment Impact Assessment Notification, 2006.

5. Further, it is submitted that the impugned notification is ingross violation of the judgment of the Hon’ble Supreme Courtin the case of Alembic Pharmaceuticals Ltd. v Rohit Prajapati,2020 SCC Online SC 347 and the orders passed by theNational Green Tribunal, Principal Bench, New Delhi, in thecase of S.P.Muthuraman v Union of India & Another, 2015SCC Online NGT 169.

6. Identical grounds were considered by us in challenge toan office memorandum dated 19.02.2021, which provided aprocedure for granting post facto clearance under CoastalRegulation Zone (CRZ) Notification 2011, on the ground thatdespite no such provisions in the notification and beingcontrary to the earlier judgments and undertaking. The saidwrit petition in W.P(MD).No.8866 of 2021 was admitted andby order dated 30.04.2021, the said office memorandum dated19.02.2021 has been stayed.

7. The core issue in this writ petition is whether theGovernment of India could have issued the officememorandum and brought about the Standard OperatingProcedure for dealing with violators, who failed to complywith the mandatory condition of obtaining prior environmentclearance under the Environment Impact Assessment

Notification 2006, read with the provisions of Environment(Protection) Act, 1986. This issue was considered by theHon’ble Supreme Court in Alembic Pharmaceuticals Ltd(supra), and it was held that such office memorandum in thenature of circular is without jurisdiction. The operative portionof the judgment reads as follows:

“...What is sought to be achieved by the administrativecircular dated 14 May 2002 is contrary to the statutorynotification dated 27 January 1994. The circular dated14 May 2002 does not stipulate how the detrimental effectson the environment would be taken care of if the projectproponent is granted an ex post facto EC. The EIAnotification of 1994 mandates prior environmentalclearance. The circular substantially amends or alters theapplication of the EIA notification of 1994. The mandateof not commencing new project or expanding ormodernising an existing one unless an environmentalclearance has been obtained stands diluted and is renderedineffective by the issuance of the administrative circulardated 14 May 2002. This discussion leads us to theconclusion that the administrative circular is not measureprotected by Section 3. Hence there was no jurisdictionalbar on the NGT to enquire into its legitimacy or vires.Moreover, the administrative circular is contrary to the EIANotification 1994 which has statutory character. Thecircular is unsustainable in law.”

8. Despite the above decision, once again the Government ofIndia, Ministry of Environment, Forest and Climate Changehave chosen to adopt the route of issuing the officememorandum and virtually setting at naught the provisionsof the Environment Impact Assessment Notification and theEnvironment (Protection) Act.

9. Before the Hon’ble First Bench, public interest litigationwas filed by the Puducherry Environment ProtectionAssociation, challenging the notification dated 14.03.2017,on identical grounds and the Hon’ble First Bench by judgmentdated 13.10.2017, recorded the submissions of the learnedAssistant Solicitor General of India that the said notification

Awas one-time measure and accordingly, disposed of the writpetition.

10. Once again, the Ministry of Environment, Forest andClimate Change have issued the impugned officememorandum. Thus, from what we have noted above, we areBof the clear view that the petitioner has made out primafacie case for entertaining the writ petition. Accordingly, thewrit petition is admitted and there shall be an order of interimstay.”

35. It is true that in the case of Puducherry EnvironmentCProtection Association v. Union of India[4], the Division Bench of MadrasHigh Court took note of and recorded the submission made on behalf ofthe Union of India that the relaxation was one time relaxation. In view ofsuch submission, this Court held that one time relaxation was permissible.

36. It is, however, well settled that words and phrases and/orsentences in judgment cannot be read in the manner of statute, andDthat too out of context. The observation of the Division Bench that onetime relaxation was permissible, is not to be construed as finding thatrelaxation cannot be made more than once. If power to amend or modifyor relax notification and/or order exists, the notification and/or ordermay be amended and/or modified as many times, as may be necessary.EA statement made by counsel in Court would not prevent the authorityconcerned from making amendments and/or modifications provided suchamendments and/or modifications were as per the procedure prescribedby law.

37. The Division Bench of Madras High Court fell in error inFstaying the said office memorandum, by relying on observations madeby this Court in Alembic Pharmaceuticals Ltd. (supra), in the contextof circular which was contrary to the statutory Environment ImpactNotification of 1994. The attention of the High Court was perhaps notdrawn to the fact that the notification of 7[th] July 2021 was in pursuanceof the statutory notification of 2017 which was valid. The judgment ofGthis Court in Alembic Pharmaceuticals Ltd. (supra), was clearlydistinguishable and could have no application to the office memorandumdated 7[th] July 2021 which was issued pursuant to the notification dated14[th] March 2017.

H4 2017 SCC OnLine Mad 7056

D. SWAMY V. KARNATAKA STATE POLLUTION CONTROLBOARD AND ORS. [INDIRA BANERJEE, J.]

38. InElectrosteel Steels Limited v. Union of India[5], this Courtheld:-

“82. The question is whether an establishment contributingto the economy of the country and providing livelihood tohundreds of people should be closed down for the technicalirregularity of shifting its site without prior environmentalclearance, without opportunity to the establishment toregularize its operation by obtaining the requisite clearancesand permissions, even though the establishment may nototherwise be violating pollution laws, or the pollution, if any,can conveniently and effectively be checked. The answer hasto be in the negative.83. The Central Government is well within the scope of itspowers under Section 3 of the 1986 Act to issue directions tocontrol and/or prevent pollution including directions for priorEnvironmental Clearance before project is commenced. Suchprior Environmental Clearance is necessarily granted uponexamining the impact of the project on the environment. ExPostfacto Environmental Clearance should not ordinarily begranted, and certainly not for the asking. At the same time expost facto clearances and/or approvals and/or removal oftechnical irregularities in terms of Notifications under the 1986Act cannot be declined with pedantic rigidity, oblivious of theconsequences of stopping the operation of running steel plant.

84. The 1986 Act does not prohibit ex post facto EnvironmentalClearance. Some relaxations and even grant of ex post factoEC in accordance with law, in strict compliance with Rules,Regulations Notifications and/or applicable orders, inappropriate cases, where the projects are in compliance with,or can be made to comply with environment norms, is in overview not impermissible. The Court cannot be oblivious to theeconomy or the need to protect the livelihood of hundreds ofemployees and others employed in the project and othersdependent on the project, if such projects comply withenvironmental norms.

5 2021 SCC OnLine SC 1247

A88. The Notification being SO 804(E) dated 14[th] March, 2017was not an issue in Alembic Pharmaceuticals (supra). ThisCourt was examining the propriety and/or legality of 2002circular which was inconsistent with the EIA Notification dated27[th] January, 1994, which was statutory. Ex post factoenvironmental clearance should not however be grantedBroutinely, but in exceptional circumstances taking into accountall relevant environmental factors. Where the adverseconsequences of ex post facto approval outweigh theconsequences of regularization of operation of an industryby grant of ex post facto approval and the industry orCestablishment concerned otherwise conforms to the requisitepollution norms, ex post facto approval should be given inaccordance with law, in strict conformity with the applicableRules, Regulations and/or Notifications. Ex post factoapproval should not be withheld only as penal measure.The deviant industry may be penalised by an imposition ofDheavy penalty on the principle of ‘polluter pays’ and the costof restoration of environment may be recovered from it.

96. The appeals are allowed. The impugned order is set aside.EThe Respondent No. 1 shall take decision on the applicationof the Appellant for revised EC in accordance with law, withinthree months from date. Pending such decision, the operationof the steel plant shall not be interfered with on the ground ofwant of EC, FC, CTE or CTO.”

F39. The proposition of law enunciated/re-enunciated by this Courtin Electrosteel Steels Limited (supra) was reiterated in Pahwa PlasticsPvt. Ltd. and Anr. v. Dastak NGO and Ors.[6]

40. As held by this Court in Electrosteel Steels Limited (supra)ex post facto EC should not ordinarily be granted, and certainly not forGthe asking. At the same time ex post facto clearances and/or approvalsand/or removal of technical irregularities in terms of Notification underthe EP Act cannot be declined with pedantic rigidity, oblivious of theconsequences of stopping the operation of mines, running factories andplants.

H6 2022 SCC Online SC 362

D. SWAMY V. KARNATAKA STATE POLLUTION CONTROLBOARD AND ORS. [INDIRA BANERJEE, J.]

41. The EP Act does not prohibit ex post facto EnvironmentalClearance. Grant of ex post facto EC in accordance with law, in strictcompliance with Rules, Regulations, Notifications and/or applicableorders, in appropriate cases, where the projects are in compliance with,or can be made to comply with environment norms, is in our view notimpermissible. The Court cannot be oblivious to the economy or theneed to protect the livelihood of hundreds of employees and othersemployed in the project and others dependent on the project, if suchprojects comply with environmental norms.

42. In Lafarge Umiam Mining Private Limited v. Union ofIndia[7], three-Judge Bench of this Court held:-

“119. The time has come for us to apply the constitutional“doctrine of proportionality” to the matters concerningenvironment as part of the process of judicial review incontradistinction to merit review. It cannot be gainsaid thatutilization of the environment and its natural resources has tobe in way that is consistent with principles of sustainabledevelopment and intergenerational equity, but balancing ofthese equities may entail policy choices. In the circumstances,barring exceptions, decisions relating to utilisation of naturalresources have to be tested on the anvil of the well-recognizedprinciples of judicial review. Have all the relevant factorsbeen taken into account? Have any extraneous factorsinfluenced the decision? Is the decision strictly in accordancewith the legislative policy underlying the law (if any) thatgoverns the field? Is the decision consistent with the principlesof sustainable development in the sense that has thedecisionmaker taken into account the said principle and, onthe basis of relevant considerations, arrived at balanceddecision? Thus, the Court should review the decision-makingprocess to ensure that the decision of MoEF is fair and fullyinformed, based on the correct principles, and free from anybias or restraint. Once this is ensured, then the doctrine of“margin of appreciation” in favour of the decision-makerwould come into play.”

DEFG

A43. In Alembic Pharmaceuticals Ltd.(supra), this Courtobserved:-

“27. The concept of an ex post facto EC is in derogation ofthe fundamental principles of environmental jurisprudenceand is an anathema to the EIA notification dated 27 January1994. It is, as the judgment in Common Cause holds,detrimental to the environment and could lead to irreparabledegradation. The reason why retrospective EC or an ex postfacto clearance is alien to environmental jurisprudence isthat before the issuance of an EC, the statutory notificationwarrants careful application of mind, besides study intothe likely consequences of proposed activity on theenvironment. An EC can be issued only after various stagesof the decision making process have been completed.Requirements such as conducting public hearing, screening,scoping and appraisal are components of the decision-makingprocess which ensure that the likely impacts of the industrialactivity or the expansion of an existing industrial activity areconsidered in the decision-making calculus. Allowing for anex post facto clearance would essentially condone theoperation of industrial activities without the grant of an EC.In the absence of an EC, there would be no conditions thatwould safeguard the environment. Moreover, if the EC was tobe ultimately refused, irreparable harm would have beencaused to the environment. In either view of the matter,environment law cannot countenance the notion of an ex postfacto clearance. This would be contrary to both theprecautionary principle as well as the need for sustainabledevelopment.”

44. Even though this Court deprecated ex post facto clearances,in Alembic Pharmaceuticals Ltd. (supra), this Court did not directclosure of the units concerned but explored measures to control theGdamage caused by the industrial units. This Court held:-

“However, since the expansion has been undertaken and theindustry has been functioning, we do not deem it appropriateto order closure of the entire plant as directed by the HighCourt.”

45. The Notification being SO. 804(E) dated 14[th] March 2017was not in issue in Alembic Pharmaceuticals Ltd. (supra). In AlembicPharmaceuticals Ltd. (supra) this Court was examining the proprietyand/or legality of 2002 circular which was inconsistent with the EIANotification dated 27[th] January 1994, which was statutory. The EIANotification dated 27[th] January 1994 has, as stated above, been supersededby the Notification dated 14[th] September 2006.

46. There can be no doubt that the need to comply with therequirement to obtain EC is non-negotiable. unit can be set up orallowed to expand subject to compliance of the requisite environmentalnorms. EC is granted on condition of the suitability of the site to set upthe unit, from the environmental angle, and also existence of necessaryinfrastructural facilities and equipment for compliance of environmentalnorms. To protect future generations and to ensure sustainabledevelopment, it is imperative that pollution laws be strictly enforced.Under no circumstances can industries, which pollute, be allowed tooperate unchecked and degrade the environment.

47. Ex post facto environmental clearance should ordinarily notbe granted routinely, but in exceptional circumstances taking into accountall relevant environmental factors. Where the adverse consequences ofdenial of ex post facto approval outweigh the consequences ofregularization of operations by grant of ex post facto approval, and theestablishment concerned otherwise conforms to the requisite pollutionnorms, ex post facto approval should be given in accordance with law,in strict conformity with the applicable Rules, Regulations and/orNotifications. In given case, the deviant industry may be penalised byan imposition of heavy penalty on the principle of ‘polluter pays’ and thecost of restoration of environment may be recovered from it.

48. It is reiterated that the EP Act does not prohibit ex post factoEC. Some relaxations and even grant of ex post facto EC in accordancewith law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are incompliance with environment norms, is not impermissible. As observedby this Court in Electrosteel Steels Limited (supra), this Court cannotbe oblivious to the economy or the need to protect the livelihood ofhundreds of employees and others employed in the units and dependenton the units for their survival.

A49. Ex post facto EC should not ordinarily be granted, and certainlynot for the asking. At the same time ex post facto clearances and/orapprovals cannot be declined with pedantic rigidity, regardless of theconsequences of stopping the operations.

50. In our considered view, the NGT rightly found that when theBBio-Medical Waste Treatment facility of the Appellant was being operatedwith the requisite consent to operate, it could not be closed on the groundof want of prior Environmental Clearance. The issues raised/involved inthis appeal are squarely covered by the judgment of this Court inElectrosteel Steels Limited (supra)and Pahwa Plastics Pvt. Ltd.(supra). This Court cannot lose sight of the fact that the operation of aCBio-Medical Waste Treatment Facility is in the interest of prevention ofenvironmental pollution. The closure of the facility only on the ground ofwant of prior Environmental Clearance would be against public interest.There are no grounds to interfere with the judgment and order of theNGT in appeal as rightly argued by KSPCB and the Respondent No.3.