The Environment (Protection) Act, 1986 does not prohibit ex post facto Environmental Clearance: Supreme Court

The Supreme Court ruled that the Environment (Protection) Act, 1986 does not prohibit ex post facto Environmental Clearance (EC). 

Background 

The appeal under Section 22 of the National Green Tribunal Act, 2010, is against an order passed by the Principal Bench of the National Green Tribunal (NGT) at New Delhi, inter alia, holding that establishments such as the manufacturing units of the Appellants, which did not have prior Environmental Clearance (EC) could not be allowed to operate. 

Issue raised 

Issue raised in the appeal is that whether an establishment employing about 8000 workers, which has been set up pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post facto EC can be closed down pending issuance of EC, even though it may not cause pollution and/or may be found to comply with the required pollution norms. 

Arguments 

Advocate Gupta argued that the Appellants were bona fide under the impression that the Appellants were not required to obtain prior EC for setting up this establishment to manufacture Formaldehyde. On the basis of CTE granted by HSPCB, the Appellants set up their units taking huge loans from banks for which repayments have to be paid in installments. 

Decision 

The division bench of Justice Indira Banerjee and Justice J.K. Maheshwari reiterated that the 1986 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.

The court said that it 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 in their survival.

The court stated that 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. 

The court viewed that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate. 

The impugned order was seaside by the court in so far as the same is applicable to the units of the Appellants established and operated pursuant to CTE and CTO from the HSPCB in respect of which applications for ex post facto EC have been filed. 

The court ordered that the Respondent shall take a decision on the applications of the Appellants for EC in accordance with law within one month from date. Pending decision, the operation of the Pahwa Yamuna Nagar Unit and the Apcolite Yamuna Nagar Unit, in respect of which consents have been granted and even public hearing held in connection with grant of EC, shall not be interfered with.

The court ordered that the Appellants will be allowed to operate the units. Electricity, if disconnected, shall be restored subject to payment of charges, if any. If the application for EC is rejected on the ground of any contravention on the part of the Appellants, it will be open to the Respondents to disconnect the supply of electricity. 

Case title: M/S Pahwa Plastics Pvt. Ltd. and Anr. v/s Dastak NGO and Ors.

Citation: CIVIL APPEAL NO. 4795 OF 2021

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