1. Housing project — Failure to obtain valid Consent to Establish (CTE) — Grant of ex-post facto CTE with condition for prosecution — Challenge to prosecution order. (Para 1 , 2 , 3 )
Back
Next 
2023 Supreme(SC) 1127
SUPREME COURT OF INDIA
ABHAY S. OKA, SANJAY KAROL, JJ.
M/s Sweta Estate Pvt. Ltd. – Appellant
Versus
Haryana State Pollution Control Board and Another – Respondents
Civil Appeal No. 2212 of 2020
Decided On : 10-11-2023
Important Points
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.
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.
Subject
Environmental Law - Environmental Clearance
Act Referred
AIR PREVENTION AND CONTROL OF POLLUTION ACT: S.21, S.31
NATIONAL GREENS TRIBUNAL ACT: S.16
WATER PREVENTION AND CONTROL OF POLLUTION ACT: S.25, S.26, S.28, S.33(a), S.43, S.44
NATIONAL GREENS TRIBUNAL ACT: S.16
WATER PREVENTION AND CONTROL OF POLLUTION ACT: S.25, S.26, S.28, S.33(a), S.43, S.44
Headnote
Air (Prevention and Control of Pollution) Act, 1981 – Section 21 – Water (Prevention and Control of Pollution) Act, 1974 – Sections 25 and 26 – Environmental clearance (EC) – Expansion of housing project – Ex-post facto Consent to Establish (CTE) clearly provided that simultaneously with grant of ex-post facto CTE, action would be taken against unit which violated provisions of Air/Water Acts by not obtaining prior CTE, as a past violation – Appellant was bound by condition in ex-post facto CTE – After having acted upon ex-post facto CTE, appellant cannot be allowed to approbate and reprobate – Impugned judgment and order, insofar as it interferes with judgment and order passed by Appellate Authority, hereby confirmed. (Paras 11 and 12)
Facts of the case:
By this appeal, appellant has taken an exception to judgment and order dated 24th February 2020 passed by National Green Tribunal, Principal Bench at Delhi. Appellant undertook a project of developing a housing colony at Gurgaon - Sohna Road, Sector 48, Gurgaon, Haryana. On 4th March 2017, appellant applied for EC for expansion of housing project to the Government of India. On 21st June 2017, Chairman of Board passed an order granting approval for prosecuting appellant and its responsible Directors for offences punishable under Sections 43 and 44 of Water Act and Sections 37 and 38 of Air Act. On 28th February 2012, Board issued an office order providing that industry which comes into operation without obtaining CTE can be granted CTE ex-post facto, provided unit is compliant in all respects.
Findings of Court:
Findings recorded in paragraph 12 of impugned judgment are set aside on the ground that issues decided thereunder were beyond scope of appeal preferred before NGT. Issues which are dealt with in paragraph 12 are kept open. These issues can always be decided in appropriate proceedings in accordance with law. All contentions on that behalf are left open.
Result : Appeal partly allowed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) Mr. Shyam Divan, Sr. Adv. Ms. Mayuri Raghuvanshi, AOR Mr. Sanjay Upadhyay, Adv. Mr. Vyom Raghuvanshi, Adv. Mr. Shubham Upadhyay, Adv. Mr. Saumitra Jaiswal, Adv. Ms. Akanksha Rathore, Adv. Ms. Geetanjali Sanyal, Adv.
For the Respondent(s): Mr. Lokesh Sinhal, Sr. A.A.G. Mr. Rahul Khurana, Adv. Mr. Samar Vijay Singh, AOR Mr. Keshav Mittal, Adv. Ms. Sabarni Som, Adv.
For the Appellant(s) Mr. Shyam Divan, Sr. Adv. Ms. Mayuri Raghuvanshi, AOR Mr. Sanjay Upadhyay, Adv. Mr. Vyom Raghuvanshi, Adv. Mr. Shubham Upadhyay, Adv. Mr. Saumitra Jaiswal, Adv. Ms. Akanksha Rathore, Adv. Ms. Geetanjali Sanyal, Adv.
For the Respondent(s): Mr. Lokesh Sinhal, Sr. A.A.G. Mr. Rahul Khurana, Adv. Mr. Samar Vijay Singh, AOR Mr. Keshav Mittal, Adv. Ms. Sabarni Som, Adv.
Table of Contents
2. Whether ex-post facto CTE precludes prosecution for past violations and whether NGT exceeded its jurisdiction by analyzing environmental clearance validity. (Para 4 , 5 , 6 )
3. NGT exceeded its scope by analyzing environmental clearance validity; appellant cannot challenge prosecution after accepting ex-post facto CTE containing a prosecution condition. (Para 7 , 11 )
4. A party cannot challenge a prosecution order if they have accepted and acted upon a conditional grant of ex-post facto consent containing such a condition. (Para 11 )
5. Appeal partly allowed — NGT's observations on environmental clearance set aside — NGT's order upholding prosecution approval confirmed. (Para 12 )
6. Can the NGT decide issues beyond the specific scope of the appeal preferred before it?
No. The court held that if an appeal is limited to the legality of a specific order, the NGT should not venture into unrelated issues, such as the validity of environmental clearances, if they are outside the scope of the appeal. (Para 7 )
7. Does the grant of an ex-post facto Consent to Establish (CTE) automatically absolve a party from prosecution for prior non-compliance?
Not necessarily. If the Board's policy and the specific grant of ex-post facto CTE stipulate that prosecution for past violations will still be initiated, the party remains liable for those offences. (Para 9 , 10 , 11 )
8. Can a party challenge a condition in an administrative order after having acted upon the benefits of that order?
No. A party who acts upon a conditional grant, such as an ex-post facto CTE, cannot subsequently challenge the conditions of that grant, as they cannot be allowed to approbate and reprobate. (Para 11 )
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
