Supreme Court of India
D. SWAMYversusKARNATAKA STATE POLLUTION CONTROL BOARD AND ORS
- Citation
- 2022 INSC 998
- Decided
- 22 September 2022
- Disposal
- Dismissed
- Bench
- INDIRA BANERJEE
Holding
Ex post facto environmental clearance may be granted in exceptional cases where the project otherwise complies with environmental norms, but the appeal is dismissed as barred by delay and lacking a substantial question of law.
Summary
The appellant, D. Swamy, challenged the Karnataka State Pollution Control Board's (KSPCB) consent to operate a Common Bio‑Medical Waste Treatment Facility (CBMWTF) on the ground that the facility lacked prior environmental clearance (EC) under the 2006 Environmental Impact Assessment (EIA) Notification as amended. The National Green Tribunal (NGT) dismissed the appellant's plea for closure, holding that the facility had the requisite consent and that closure solely for the absence of prior EC would be against public interest. On appeal, the Supreme Court examined whether ex post facto EC could be granted under the Environment (Protection) Act, 1986 and the 2006 EIA Notification, and reiterated that while the requirement for EC is non‑negotiable, the Act does not prohibit granting ex post facto clearance in exceptional circumstances. The Court emphasized the principles of proportionality and polluter‑pays, noting that denial of ex post facto approval may cause greater harm than regularising the operation of a compliant facility. It also held that the appeal was barred by delay and did not raise any substantial question of law, leading to dismissal of the appeal.
Issues considered
- The requirement of prior environmental clearance under the 2006 EIA Notification for a Common Bio‑Medical Waste Treatment Facility.
- Whether ex post facto environmental clearance can be granted under the Environment (Protection) Act, 1986 and the 2006 EIA Notification.
- Whether the NGT's order directing closure of the facility for lack of prior EC is legally valid.
- Whether the appeal is barred by delay and lacks a substantial question of law.
Legislation cited
- Air (Prevention and Control of Pollution) Act, 1981
- Bio‑Medical Waste (Management and Handling) Rules, 1998
- Environmental Impact Assessment Notification, 2006s. Entry 7(da)
- Environment (Protection) Act, 1986s. 19, s. 3(1), s. 3(2)(v)
- General Clauses Act, 1897s. 21
- National Green Tribunal Act, 2010s. 22
- Water (Prevention and Control of Pollution) Act, 1974
Subjects
ex post facto environmental clearanceEIA Notification 2006National Green Tribunalpolluter pays principleproportionalitypublic interestdelay in appealenvironmental compliance
Judgment
[2022] 15 S.C.R. 547 547
D. SWAMY A
V.
KARNATAKA STATE POLLUTION CONTROL BOARD AND
ORS.
(Civil Appeal No. 3132 of 2018) B
SEPTEMBER 22, 2022
[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
National Green Tribunal Act, 2010: s. 22 – Environmental
Impact Assessment Notification 2006 – Ex Post facto Environmental
C
clearance (EC) – Respondent No.3 applied to the respondent no.1-
State 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 D
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
E
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 F
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
G
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 non-
negotiable – 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 H
547
548 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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
G 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]
H
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 549
BOARD AND ORS.
1.4 Ex post facto EC should not ordinarily be granted, and A
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.
B
[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 C
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] D
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 E
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] F
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 G
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
H
550 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 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]
B 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
C 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
D 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
E 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
F 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]
G
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.
H
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 551
BOARD AND ORS.
Shree Sidhbali Steels Ltd. & Others v. State of Uttar A
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
B
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.
Case Law Reference
C
[2011] 3 SCR 134 referred to Para 23
[2000] 4 Suppl. SCR 94 referred to Para 26
[2011] 7 SCR 954 referred to Para 42
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3132 D
of 2018.
From the Judgment and Order dated 10.05.2017 of the National
Green Tribunal, Southern Zone, Chennai in Application No.169/2016(SZ).
Anand Sanjay M. Nuli, Suraj Kaushik, Agam Sharma, Dharm
Singh for M/s Nuli & Nuli, Advs. for the Appellant. E
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. F
This appeal, under Section 22 of the National Green Tribunal Act
2010, is against a final order dated 10th May 2017 passed by the National
Green Tribunal, Southern Zone, Chennai, dismissing the Application
No.169 of 2016 (SZ) filed by the Appellant under Section 18(1) read
with Section 14 of the National Green Tribunal Act 2010, whereby the G
Appellant had prayed for a 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 Environmental
Impact Assessment Notification 2006, hereinafter referred to as “the
2006 EIA Notification” as amended on 17th April 2015.
H
552 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 2. 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
Environment (Protection) Act, 1986 (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
B
Rules.
3. On or about 25th February 2012, the Respondent No.3 applied
to the Respondent No.1, Karnataka State Pollution Control Board
(hereinafter referred to as “KSPCB”) for consent to establish a Common
Bio-Medical Waste Treatment Facility over the land bearing Survey No.
C 82 and 38/2 at Gujjegowdanapura village, Jayapura Hobli, Mysore Taluk
and District.
4. By a letter dated 24th November 2012, the Respondent No.1
KSPCB accorded consent to the Respondent No.3 to establish the
Common Bio-Medical Waste Treatment Facility under the provisions of
D the 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 said
consent was valid for a period of five years.
5. It appears that M/s Shree Consultant who had been operating
E a Common Bio-Medical Waste Treatment Facility at Survey No.25 at
Mysore and had been collecting Bio-Medical Waste from four districts
could not collect Bio-Medical Waste from the district of Hassan because
of the Common Bio-Medical Waste Treatment Facility established by
the Respondent No.3.
F 6. M/s Shree Consultant filed appeals bearing Nos.48 and 49 of
2012 before the Karnataka State Environment Appellate Authority,
Bangalore challenging the consent granted to the Respondent No.3 to
establish the Common Bio-Medical Waste Treatment Facility. The
Karnataka State Environment Appellate Authority, Bangalore granted
an interim stay of the order granting consent to the Respondent No.3 to
G establish the Common Bio-Medical Waste Treatment Facility. Ultimately
however, the appeal was dismissed by a common judgment and order
dated 20th April 2013.
7. M/s Shree Consultant filed Appeal Nos. 46-47 of 2013 before
the National Green Tribunal, Southern Zone, Chennai against the common
H judgment and order dated 20th April 2013 passed by the Karnataka State
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 553
BOARD AND ORS. [INDIRA BANERJEE, J.]
Environment Appellate Authority, Bangalore in Appeal Nos.48-49 of A
2012.
8. By a judgment and order dated 28th November 2013, the
Principal Bench of the National Green Tribunal at New Delhi held that
Bio-Medical Waste Treatment Plants were required to obtain an
Environmental Clearance (EC) from the Ministry of Environment and B
Forests, Government of India, hereinafter referred to as “MoEF&CC”,
in terms of Entry 7(d) of the Notification dated 14th September 2006.
The National Green Tribunal had also directed the parties who had been
running Common Bio-Medical Waste Treatment Facilities to apply to
the MoEF&CC for EC.
C
9. On 26th February 2014, the Central Pollution Control Board
issued guidelines for Common Bio-Medical Waste Treatment Facilities.
On 14th July 2014, the National Green Tribunal, Southern Zone, Chennai
passed a judgment and order dismissing Appeal Nos. 46-47 of 2013 filed
by M/s Shree Consultant and held that the Respondent No.1 had rightly
given consent to the Respondent No.3 for establishing its Common Bio- D
Medical Waste Treatment Facility.
10. On 4th March 2015, the Respondent No.3 applied for grant of
consent to operate the Common Bio-Medical Waste Facility under the
provisions of the relevant Water Pollution and Air Pollution Acts.
E
11. On 17th April 2015, MoEF&CC amended the Notification dated
14 September 2006, in view of the Judgment dated 28th November
th
2013 passed by the National Green Tribunal, Principal Bench, New Delhi
in Appeal No. 63 of 2012. By the amendment Entry 7(da) was inserted
after Entry 7(d) in the Schedule. Entry 7(da) provided that Common
Bio-Medical Waste Treatment Facilities would be required to obtain EC F
from the Ministry of Environment and Forest.
12. It appears that on 13 th July 2015, the villagers of the
Gujjegowdanapura, Manadalli, Harohalli, Chunchunarayahundi, Kallahalli,
Arinakere, Mahadevpura at Jayapura Hobli, Mysore made a
representation to the Respondent No.1 seeking an order banning the G
establishment of Common Bio-Medical Waste Treatment Facility by the
Respondent No.3.
13. Thereafter, the Respondent No.1 issued notices to the Common
Bio-Medical Waste Treatment Facility of the Respondent No.3, calling
upon it to submit a report of compliance of pollution norms. H
554 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 14. On 1st December 2015, the State Level Environment Impact
Assessment Authority, Karnataka (SEIAA) issued directions to the
Respondent No.1 under Section 5 of the Environment (Protection) Act,
1986 to issue consent for operation of the Common Bio-Medical Waste
Treatment Facility and other projects attracting the 2006 EIA Notification
and the amendments thereto.
B
15. By its letter dated 28th December 2015, the Respondent No.1
instructed all the concerned officers of the KSPCB that application for
consent to establish or operate projects attracting the 2006 EIA
Notification and amendments thereto were to be received by the KSPCB
only if EC was attached to the application.
C
16. On 19th January 2016, the Respondent No.3 resubmitted its
application for consent to operate the Common Bio-Medical Waste
Treatment Facility, which had earlier been returned by the Respondent
No.1. On 11 th February 2016, the Respondent No.1 granted the
Respondent No.3 consent to operate its Common Bio-Medical Waste
D Treatment Facility at Gujjegowdanapura village, Jayapura Hobli in Mysore
district. The said consent was valid for the period from 1st July 2015 to
30th June 2016.
17. The Appellant filed Appeal No.3 of 2016 before the Karnataka
State Environment Appellate Authority under Section 28 of the Water
E (Prevention and Control of Pollution) Act, 1974 challenging the consent
to the Respondent No.3 to operate the Common Bio-Medical Waste
Treatment Facility. Very soon thereafter the MoEF&CC revised the
Bio-Medical Waste (Management and Handling) Rules 1998 under
Section 6, 8 and 25 of the EP Act.
F 18. The Appeal No.3 of 2016 filed by the Appellant before the
Karnataka State Environment Appellate Authority, against the consent
order dated 11th February 2016 passed by the Respondent No.1 came to
be withdrawn by the Appellant because the said appeal had become
infructuous in view of the expiration of the period of consent to operate
G granted to the Respondent No.3 on 30th June 2016.
19. By an order dated 17th August 2016, the National Green
Tribunal, Southern Zone, Chennai directed that the application for renewal
of consent to operate, pending before the Respondent No.1 might be
processed in accordance with law subject to the final order passed by
the Tribunal.
H
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 555
BOARD AND ORS. [INDIRA BANERJEE, J.]
20. Pursuant to the aforesaid order dated 17th August 2016, the A
Respondent No.1 renewed the consent order to operate the Common
Bio-Medical Waste Treatment Facility in favour of the Respondent No.3
which was valid for the period from 17th August 2016 to 30th 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 Central B
Government issued a Notification being S.O. 804(E) dated 14 th 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
C
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
D
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 E
a site which under 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 F
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 G
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
H
556 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 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
B
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.”
C
22. 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.
D
23. 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 the like manner, and subject to like sanction and conditions,
if any, to add to, amend, vary or rescind any notification, order, rule or
E bye-law so issued. The authority, which had the power to issue
Notifications dated 27 th January 1994 and 14 th 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 & Others1, power
under Section 21 of the General Clauses Act to amend, vary or rescind
F
notifications, orders, rules or bye-laws can be exercised from time to
time having regard to the exigency.
24. 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
G
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.
1
H (2011) 3 SCC 193
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 557
BOARD AND ORS. [INDIRA BANERJEE, J.]
25. The MoEF&CC issued a draft Notification dated 23rd March A
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. It was proposed that cases of violation would be appraised
B
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 C
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.
26. The appeal has been opposed by the KSPCB. On behalf of D
the KSPCB, it is submitted that the appeal is liable to be dismissed on
the 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 inordinate
delay. It is next contented that there is no substantial question of law of
general importance involved in this appeal. The appeal is liable to be
dismissed on that ground. It is also contended that the appeal suffers E
from suppression of facts. On behalf of KSPCB, it is contended that the
2015 amendment dated 17th April 2015 to the EIA Notification is
prospective in the light of the law laid down in Narmada Bachao
Andolan v. Union of India2. The Respondent No.3 had applied to the
KSPCB for consent to operate before the EIA Notification dated 17th F
April 2015, for no prior ECl was required for projects which came to
existence after 14th September 2006 but before 17th April 2015.
27. On 21st December 2016, the Central Pollution Control Board,
MoEF&CC, Government of India issued revised guidelines for Common
Bio-Medical Wastes Treatment and Disposal Facility.
G
28. By final judgment and order dated 10th May 2017, which is
impugned in this appeal, the National Green Tribunal has dismissed the
appeal filed by the Appellant, with the observation that the Respondent
No.3 could not be directed to be closed down for want of EC.
2
(2000) 10 SCC 664 H
558 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 29. By an Office Memorandum, being F. No. 22-21/2020-1A III,
dated 7th July 2021, the MoEF&CC issued Standard Operating Procedure
(SoP) for identification and handling of violation cases under 2006 EIA
Notification.
30. The said Office Memorandum, inter alia, reads:
B “The Ministry had issued a notification number S.O.804(E),
dated the 14th 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
C 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.
D 3. Hon’ble NGT in Original Application No.287 of 2020 in
the matter of Dastak N.G.O. v Synochem Organics Pvt. Ltd.
& Ors. and in applications pertaining to same subject matter
in Original Application No. 298 of 2020 in Vineet Nagar v
Central Ground Water Authority & Ors., vide order dated
E 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
F 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”.
G
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
H framework based on ‘Polluter Pays Principle’ and ‘Principle
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 559
BOARD AND ORS. [INDIRA BANERJEE, J.]
of Proportionality’. It is undoubtedly important that action A
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 B
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.”
C
31. The SoP formulated by the said Office Memorandum dated
7th July 2021 refers to and gives effect to various judicial pronouncements
including the judgment of this Court in Alembic Pharmaceuticals Ltd.
v. Rohit Prajapati & Others3.
32. In terms of the SoP, the proposal for grant of EC in cases of D
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.
33. A Public Interest Litigation being W.P. (MD) No. 11757 of
2021 (Fatima v. Union of India) was filed before the Madurai Bench E
of the Madras High Court challenging the said Memorandum dated 7 th
July 2021. By an interim order dated 15th July 2021 a Division Bench of
the Madras High Court admitted the Writ Petition and stayed the said
memorandum.
34. The Madurai Bench of the Madras High Court observed and F
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 G
appearing for the writ petitioner and Mr.L.Victoria Gowri,
learned Assistant Solicitor General of India, accepts notice
for the respondent.
3
2020 SCC OnLine SC 347 H
560 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 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
B
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
C 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.
D 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. v Rohit Prajapati,
2020 SCC Online SC 347 and the orders passed by the
National Green Tribunal, Principal Bench, New Delhi, in the
E case of S.P.Muthuraman v 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
F 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.
G
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 condition of obtaining prior environment
H clearance under the Environment Impact Assessment
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 561
BOARD AND ORS. [INDIRA BANERJEE, J.]
Notification 2006, read with the provisions of Environment A
(Protection) Act, 1986. This issue was considered by the
Hon’ble Supreme Court in Alembic Pharmaceuticals Ltd
(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:
B
“...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 C
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 D
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. E
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 F
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 G
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 H
562 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 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
B 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.”
35. It is true that in the case of Puducherry Environment
C Protection Association v. Union of India4, 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.
36. 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
D
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.
E 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.
37. The Division Bench of Madras High Court fell in error in
F 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
G 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.
H 4
2017 SCC OnLine Mad 7056
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 563
BOARD AND ORS. [INDIRA BANERJEE, J.]
38. InElectrosteel Steels Limited v. Union of India5, this Court A
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 B
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. C
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 D
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 E
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, F
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 G
dependent on the project, if such projects comply with
environmental norms.
***
5
2021 SCC OnLine SC 1247 H
564 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 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
27 th January, 1994, which was statutory. Ex post facto
environmental clearance should not however be granted
B
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
C 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
D
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.
E 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.”
F 39. The proposition of law enunciated/re-enunciated by this Court
in Electrosteel Steels Limited (supra) was reiterated in Pahwa Plastics
Pvt. 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 for
G 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.
6
H 2022 SCC Online SC 362
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 565
BOARD AND ORS. [INDIRA BANERJEE, J.]
41. The EP Act does not prohibit ex post facto Environmental A
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 the B
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.
42. In Lafarge Umiam Mining Private Limited v. Union of
7
India , a three-Judge Bench of this Court held:- C
“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 D
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 E
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 F
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 G
bias or restraint. Once this is ensured, then the doctrine of
“margin of appreciation” in favour of the decision-maker
would come into play.”
7
(2011) 7 SCC 338 H
566 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 43. 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
B 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
C
the likely consequences of a proposed activity on the
environment. An EC can be issued only after various stages
of the decision making process have been completed.
Requirements such as conducting a public hearing, screening,
scoping and appraisal are components of the decision-making
D 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.
E 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
F precautionary principle as well as the need for sustainable
development.”
44. 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
G 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.”
H
D. SWAMY V. KARNATAKA STATE POLLUTION CONTROL 567
BOARD AND ORS. [INDIRA BANERJEE, J.]
45. The Notification being SO. 804(E) dated 14th March 2017 A
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
B
by the Notification dated 14th September 2006.
46. 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
C
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. D
47. 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 E
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 F
cost of restoration of environment may be recovered from it.
48. It is reiterated that 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 G
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 for their survival.
H
568 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 49. 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.
50. In our considered view, the NGT rightly found that when the
B 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. The issues raised/involved in
this appeal are squarely covered by the judgment of this Court in
Electrosteel Steels Limited (supra)and Pahwa Plastics Pvt. Ltd.
(supra). This Court cannot lose sight of the fact that the operation of a
C 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.
D The appeal is barred by delay. In any case, the appeal does not raise any
substantial question of law. The appeal is therefore dismissed.
Nidhi Jain Appeal dismissed.
(Assisted by : Shashwat Jain, LCRA)
E
F
G
H
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