2022 Supreme(SC) 245

SUPREME COURT OF INDIA
(From the National Green Tribunal)
Indira Banerjee, J.K. Maheshwari, JJ.
M/S PAHWA PLASTICS PVT. LTD. AND ANR. – Appellants
Versus
DASTAK NGO AND ORS. – Respondents
Civil Appeal No. 4795 of 2021
Decided On : 25-03-2022

IMPORTANT POINTS
(1) Environment (Protection) Act, 1986 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 projects are in compliance with, or can be made to comply with environment norms, is not impermissible.
(2) An unit contributing to economy of country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from concerned statutory authorities, and has applied for ex post facto EC, should not be closed down for technical irregularity of want of prior environmental clearance, pending issuance of EC, even though it may not cause pollution and/or may be found to comply with required norms.
(3) If power to amend or modify or relax a notification and/or order exists, notification and/or order may be amended and/or modified as many times, as may be necessary.

Headnote:

(A) Air (Prevention and Control of Pollution) Act, 1981 – Sections 16, 17 and 18 – Environment (Protection) Act, 1986 – Section 3 – National Green Tribunal Act, 2010 – Section 22 – Bar on operation of industrial establishments not having prior Environmental Clearance – Where a notification is issued under Air Pollution Act, placing an area within control area of air pollution, permission is necessary to set up and operate any factory or plant thereat – No person operating any factory or plant in any air pollution control area is to discharge or cause or permit to be discharged emission of any air pollutants, in excess of standards laid down by SPCB under Clause (g) of sub-Section (1) of Section 17 – Notification of 2017 is a valid statutory notification issued by Central Government in exercise of power under Sections 3(1) and 3(2)(v) of EP Act read with Rule 5(3)(d) of the EP Rules in same manner as EIA Notification dated 27th January 1994 and Notification dated 14th September 2006 – Appellants duly applied for EC in respect of their manufacturing units – After scrutinizing their applications and after finding the units suitable for grant of EC in terms of prevailing guidelines, Expert Appraisal Committee constituted by MoEF & CC conducted a public hearing to finalize cases of Appellants for issuance of Terms of Reference – Manufacturing units of Appellants appoint about 8,000 employees and have a huge annual turnover – An establishment contributing to economy of country and providing livelihood ought not to be closed down only on the ground of technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not unit actually causes pollution. (Paras 8, 31, 37 and 54)

(B) National Green Tribunal Act, 2010 – Section 22 – Air (Prevention and Control of Pollution) Act, 1981 – Sections 16, 17 and 18 – Environment (Protection) Act, 1986 – Section 3 – Bar on operation of industrial establishments not having prior Environmental Clearance – Ex post facto Environmental Clearance should not ordinarily be granted, and certainly not for asking – At the same time ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of a Notification under EP Act cannot be declined with pedantic rigidity, oblivious of consequences of stopping operation of mines, running factories and plants – 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 projects are in compliance with, or can be made to comply with environment norms, is not impermissible – Court cannot be oblivious to economy or need to protect livelihood of hundreds of employees and others employed in project and others dependent on the project, if such projects comply with environmental norms – Need to comply with requirement to obtain EC is non-negotiable – An unit can be set up or allowed to expand subject to compliance of requisite environmental norms – EC is granted on condition of suitability of site to set up unit, from 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 environment – Deviant industry may be penalised by an imposition of heavy penalty on principle of ‘polluter pays’ and cost of restoration of environment may be recovered from it – However, an unit contributing to economy of country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from concerned statutory authorities, and has applied for ex post facto EC, should not be closed down for technical irregularity of want of prior environmental clearance, pending issuance of EC, even though it may not cause pollution and/or may be found to comply with required norms – NGT erred in law in directing that units cannot be allowed to function till compliance of statutory mandate – Impugned order set aside in so far as same is applicable to units of Appellants established and operated pursuant to CTE and CTO from HSPCB in respect of which applications for ex post facto EC have been filed – Respondent shall take a decision on applications of Appellants for EC in accordance with law within one month from date. (Paras 56, 57, 62, 63, 65, 66 and 67)

(C) General Clauses Act, 1897 – Section 21 – Power to issue notifications, orders, rules or bye-laws – Power under Section 21 to amend, vary or rescind notifications, orders, rules or bye-laws can be exercised from time to time having regard to exigency – If power to amend or modify or relax a notification and/or order exists, notification and/or order may be amended and/or modified as many times, as may be necessary – A statement made by Counsel in Court would not prevent authority concerned from making amendments and/or modifications provided such amendments and/or modifications were as per procedure prescribed by law – Words and phrases and/or sentences in a judgment cannot be read in the manner of a statute, and that too out of context. (Paras 32 and 47)

Facts of the case:

Present appeal under Section 22 of the National Green Tribunal Act, 2010, is against an order dated 3rd June 2021 passed by the Principal Bench of the National Green Tribunal (NGT) in O.A No.287/2020 at New Delhi, inter alia, holding that establishments such as manufacturing units of the Appellants, which did not have prior Environmental Clearance (EC) could not be allowed to operate. Question of law involved in this appeal is, 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 required pollution norms.

Findings of Court:

Appellants will be allowed to operate the units. Electricity, if disconnected, shall be restored subject to payment of charges, if any. If 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.

Result : Appeal allowed.