Manufacturing units with pollution board consents can operate pending ex-post facto environmental clearance despite lacking prior EC, if applied timely post-direction and comply with norms, avoiding technical closure.

JUDGMENT :

J.K. MAHESHWARI, J.

1. In all these appeals, the appellants are the industries, and running the manufacturing units of Formaldehyde, its different resins (including melamine formaldehyde, urea formaldehyde and phenol formaldehyde) in the States of Rajasthan and Haryana. In Civil Appeal No.2881 of 2021, Civil Appeal No.4432 of 2021, Civil Appeal No.4431 of 2021 and Civil Appeal No.4748 of 2021 the units are situated in State of Rajasthan while in Civil Appeal No.4654 of 2021, Civil Appeal No.4908 of 2021 and Civil Appeal No.4902-4903 of 2021 the units are situated in State of Haryana.

2. Three Original Applications were preferred, being O.A. No. 298/2020 (Vineet Nagar v. CGWA), O.A. No. 287/2020 (Dastak N.G.O. v. Synochem Organics Pvt. Ltd. & Ors. and O.A. No. 840/2019 (Ayush Garg v. Union of India) before the National Green Tribunal, Principal Bench, New Delhi (for brevity ‘NGT’). In those original applications, it was contended that the units of formaldehyde manufacturing have been established and are operating without prior Environmental Clearance (for brevity ‘EC’).

3. The NGT decided all the said original applications on 03.06.2021, albeit by three different orders. The main order was passed in the case of O.A. No. 287/2020 (Dastak N.G.O. wherein it was directed that formaldehyde manufacturing units cannot be allowed to operate without prior EC. In O.A. No. 298/2020 (Vineet Nagar), the appellants-units herein were arrayed as respondents, and it was decided on the same date relying upon the directions issued in the case of Dastak N.G.O by NGT.

4. The manufacturers of formaldehyde units, being aggrieved by the order of the NGT, have filed the present appeals. On 30.07.2021, this Court was pleased to issue notice and as an interim measure, stayed the operation of the order impugned. It is pertinent to note that C.A. No. 4795/2021 being Pahwa Plastics Private Limited and Anr. v. Dastak NGO and Ors. , (2023) 12 SCC 774 dealing with two units was filed against the order dated 03.06.2021 passed by the NGT in O.A. No. 287/2020 of Dastak N.G.O (for brevity ‘Dastak N.G.O’). Initially, the present appeals were clubbed with Pahwa Plastics (supra), however later, only the case of Pahwa Plastics (supra) was decided vide judgment dated 25.03.2022, allowing the appeals filed by the manufacturing units. In the said judgment , this Court observed that the industrial units therein was established and operating on the basis of a valid Consent to Establish (for brevity ‘CTE’) and Consent to Operate (for brevity ‘CTO’) granted by the Pollution Control Board (for brevity ‘PCB’) of the concerned States. It was further held that the unit cannot be closed merely on account of technical irregularity for want of prior EC, when the PCB itself was not aware of the applicability of EC for such units. In consequence, the order of NGT was set aside with direction to continue the operation of the units.

5. At this stage, it will not be out of place to refer to the judgment of this Court dated 16.11.2025 in Vanashakti v. Union of India , 2025 SCC OnLine SC 1139 (hereinafter ‘Vanashakti judgment ’) where challenge was laid to two Office Memorandums (for brevity ‘OM’) issued by the Ministry of Environment, Forests and Climate Change (for brevity ‘MoEF&CC’) in 2017 and 2021. The OM dated 14.03.2017 was applicable to projects or activities that had started work on site, expanded production beyond the limit of the EC or changed