Case: GAJUBHA JADEJA JESAR Vs. UNION OF INDIA &amp; ORS

comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms. xx xx xx 60. 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 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. xx xx xx 63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of polluter pays and the cost of restoration of environment may be recovered from it. 64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required. xx xx xx 66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate. 21. The judgment in Common Cause referred to by Ms. Shenoy is of no help to support her arguments as the question was whether illegal mining can be said to be within the leased area for mining. It was held that illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area under the Mines and Minerals (Development and Regulation) Act, 1957. 22. In Hanuman Laxman Aroskar, this Court held that the EIA notification of the year 2006 demonstrates an increasing awareness of the complexities of the environment and the heightened scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. It was held as under: 56. The 2006 Notification embodies the notion that the development agenda of the nation must be carried out in compliance with norms stipulated for the protection of the environment and its complexities. It serves as a balance between development and protection of the environment: there is no trade-off between the two. The protection of the environment is an essential facet of development. It cannot be reduced to a technical formula. The notification demonstrates an increasing awareness of the complexities of the environment and the heightened scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. In laying down a detailed procedure for the grant of an EC, the 2006 Notification attempts to bridge the perceived gap between the environment and development. 23. In Alembic Pharmaceuticals Limited, the validity of circular dated 14.5.2002 was in question. This Court found that such circular is contrary to the EIA notification of 1994. It was decided by the Ministry that the industrial units which had gone into production without obtaining an EC would have to apply for and obtain an ex- post facto EC. The said judgment has no applicability to the facts of the present case where the Ministry itself is of the opinion that there was an ambiguity in the EIA notification of 2006. Such ambiguity has been removed only when the EIA notification was subsequently amended on 20.7.2022. Therefore, the judgments referred to by Ms. Shenoy are not applicable to the facts of the present case. 24. We are constrained to point out that out of 1689 units in the country, the applicant has chosen the Project Proponent as it appears to be a motivated petition to target the Project Proponent though the Cold Steel Rolling Mills in the country were operating under the same regime. Not only the Project Proponent, but the country also has suffered immensely on account of closure of the unit which was export oriented unit. It may be noticed that the Gujarat State Pollution Control Board has chosen the Project Proponent to serve with a closure notice on 25.6.2021. The unit is lying closed since then. In view of the amendment in the EIA notification dated 20.7.2022, the unit has time to seek Environmental Clearance in terms of the time line mentioned in the notification. Therefore, the order of closure of the unit cannot be sustained.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]18. We have heard learned counsel for the parties and find no error in the order passed by the Tribunal. The order of the Tribunal is based upon recommendation of the EAC which suggested that one year time should be granted to the industry to comply with the EIA notification dated 14.9.2006. The stand of the Ministry as well as the Project Proponent is that there was ambiguity in the EIA notification 2006. 1689 units have come up in the country on the basis of CTE and CTO regime. It is not a case of ambiguous interpretation in respect of one or two units but the entire country was having the same interpretation that Re-Rolling Steel Plants do not require a prior Environmental Clearance. The ambiguity has been removed only on 20.7.2022 when the notification has been amended, as reproduced above. Since there was ambiguity earlier, the Tribunal had granted time to the Project Proponent to comply with the requirement of Environmental Clearance.19. Such direction of the Tribunal is, in fact, arising out of scope of powers conferred on the Tribunal under Section 21 of the NGT Act. This Court in Ankita Sinha considering the suo moto powers of the Tribunal held as under:98. The NGT Act, when read as a whole, gives much leeway to the NGT to go beyond a mere adjudicatory role. The Parliaments intention is clearly discernible to create a multifunctional body, with the capacity to provide redressal for environmental exigencies. Accordingly, the principles of environmental justice and environmental equity must be explicitly acknowledged as pivotal threads of the NGTs fabric. The NGT must be seen as a sui generis institution and not unus multorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Court.xxx xxx xxx102. In circumstances where adverse environmental impact may be egregious, but the community affected is unable to effectively get the machinery into action, a forum created specifically to address such concerns should surely be expected to move with expediency, and of its own accord. The potentiality of disproportionate harm imposes a higher obligation on authorities to preserve rights which may be waylaid due to such restrictive access. It is also noteworthy that the global impacts of climate change will fall disproportionately on minority and low-income communities [Scott La Franchi, Surveying the Precautionary Principles Ongoing Global Development : The Evolution of an Emergent Environmental Management Tool, [32 B.C. Envtl. Aff. L. Rev. 679 (2005)]. Thus, an affirmative role, beyond mere adjudication at the instance of applicant, is certainly required for serving the ends of environmental justice, as the statute itself requires of the NGT. We cannot validate an argument which furthers uncertainty to justify the role of a spectator, if not inaction, and would most assuredly result in injustice.103. The NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns. Such a society centric approach must be allowed to work within the established safety valves of the principles of natural justice and appeal to the Supreme Court. The hands- off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice.20. In Pahwa Plastics Pvt. Ltd., an establishment had been set up pursuant to CTE and CTO from the concerned statutory authority. The establishment applied for ex-post facto Environmental Clearance. In these circumstances, this Court held that ex-post Environmental Clearance should not ordinarily be granted but it cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operation. Hence, the order of the Tribunal to close the units was found to be erroneous. The order of closure of establishments for the lack of Environmental Clearance was set aside by this Court, inter alia, for the reason that whether the unit contributing to the economy and providing livelihood to hundreds of people set up in pursuance to requisite approvals of the concerned statutory authorities should be closed down for the technical irregularity or want of prior Environmental Clearance. This Court held as under:54. The manufacturing units of the Appellants appoint about 8,000 employees and have a huge annual turnover. An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution.xx xx xx56. As held by this Court in Electrosteel Steels Limited (supra) ex post 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 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.57. The 1986 Act does not prohibit ex post facto Environmental Clearance. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.xx xx xx60. 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 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.xx xx xx63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of polluter pays and the cost of restoration of environment may be recovered from it.64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required.xx xx xx66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate.21. The judgment in Common Cause referred to by Ms. Shenoy is of no help to support her arguments as the question was whether illegal mining can be said to be within the leased area for mining. It was held that illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area under the Mines and Minerals (Development and Regulation) Act, 1957.23. In Alembic Pharmaceuticals Limited, the validity of circular dated 14.5.2002 was in question. This Court found that such circular is contrary to the EIA notification of 1994. It was decided by the Ministry that the industrial units which had gone into production without obtaining an EC would have to apply for and obtain an ex- post facto EC. The said judgment has no applicability to the facts of the present case where the Ministry itself is of the opinion that there was an ambiguity in the EIA notification of 2006. Such ambiguity has been removed only when the EIA notification was subsequently amended on 20.7.2022. Therefore, the judgments referred to by Ms. Shenoy are not applicable to the facts of the present case.24. We are constrained to point out that out of 1689 units in the country, the applicant has chosen the Project Proponent as it appears to be a motivated petition to target the Project Proponent though the Cold Steel Rolling Mills in the country were operating under the same regime. Not only the Project Proponent, but the country also has suffered immensely on account of closure of the unit which was export oriented unit. It may be noticed that the Gujarat State Pollution Control Board has chosen the Project Proponent to serve with a closure notice on 25.6.2021. The unit is lying closed since then. In view of the amendment in the EIA notification dated 20.7.2022, the unit has time to seek Environmental Clearance in terms of the time line mentioned in the notification. Therefore, the order of closure of the unit cannot be sustained.