IMPORTANT POINT
Environmental clearance (EC) – Appellant is bound by condition in ex-post facto CTE – After having acted upon ex-post facto CTE, appellant cannot be allowed to approbate and reprobate.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. By this appeal, the appellant has taken an exception to the judgment and order dated 24th February 2020 passed by the National Green Tribunal, Principal Bench at Delhi. The appellant undertook a project of developing a housing colony at Gurgaon - Sohna Road, Sector 48, Gurgaon, Haryana. The housing project comprised several buildings containing apartments, service apartments, etc. Initially, in August 2006, the appellant applied to the Haryana State Pollution Control Board (for short ‘the Board’) for a grant of Consent to Establish (CTE) under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (the ‘Air Act’) and Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 (the ‘Water Act’) to the Board. Based on another application made by the appellant, on 10th April 2007, the Ministry of Environment, Forest and Climate Change of the Government of India granted environmental clearance (EC) to the appellant to develop the housing complex. On 18th April 2007, the Board granted CTE under the Air and Water Act. In 2013 and 2015, the appellant applied for renewal of the CTE. The applications were rejected. On 29th December 2015, the Board issued a show cause notice of closure under Section 33-A of the Water Act and Section 31-A of the Air Act. The notice also called upon the appellant to show-cause why the appellant should not be penalised under the relevant provisions of the Air Act and the Water Act. The appellant replied to the said notice.

2. On 4th March 2017, the appellant applied for EC for the expansion of the housing project to the Government of India. On 21st June 2017, the Chairman of the Board passed an order granting approval for prosecuting the appellant and its responsible Directors for the offences punishable under Sections 43 and 44 of the Water Act and Sections 37 and 38 of the Air Act. On 28th February 2012, the Board issued an office order providing that the industry which comes into operation without obtaining CTE can be granted CTE ex-post facto, provided the unit is compliant in all respects.

3. On 29th August 2017, the Government of India granted EC to the appellant for the housing complex. On 18th October 2017, the Board granted ex-post facto CTE to the appellant, which contained a condition that prosecution would be initiated against the appellant as per the approval granted under the order dated 21st June 2017. In January 2018, the appellant preferred an appeal before the Appellate Authority established under the Air and Water Acts by invoking Section 31 of the Air Act and Section 28 of the Water Act for setting aside the order dated 21st June 2017 passed by the Chairman of the Board granting approval to prosecute the appellant. The Appellate Authority, by judgment and order dated 15th March 2018, quashed the order of approval on the ground that, subsequently, ex-post facto CTE has been granted to the appellant. Being aggrieved by the said order of the Appellate Authority, the Board preferred an appeal under Section 16 of the National Green Tribunal Act, 2010, before the National Green Tribunal (NGT). By the impugned judgment, the appeal was allowed, and the order dated 15th March 2018 of the Appellate Authority was quashed and set aside. While doing so, in paragraph 12, observations were made by the NGT that EC granted on 29th August 2017 cannot condone the illegal construction raised from 9th April 2012 to 29th August 2017. NGT held that the environment clearance granted on 10th April 2007 expired on 9th April 2012.

SUBMISSIONS

4. The learned senior counsel appearing for the appellant urged that out of a total of 28 towers, 26 towers have been constructed. He pointed out that in 2010 and 2014, occupation certificates were granted for nine and ten towers, respectively. On 24th May 2016, an occupancy certificate was granted with respect to seven towers. He submitted that even assuming without admitting that the EC expired on 9