M. Sundar, J.

1. This writ petition has been filed as a Public Interest Litigation. In the instant writ petition, a notification dated 14.03.2017 bearing reference S.O.804(E) made by the Union of India (hereinafter referred to as 'UOI' for brevity) has been assailed.

2. Bare minimum facts essential for understanding and appreciating this order are set out infra under the caption 'Facts in a nutshell'.

Facts in a nutshell :

3(a) Notification dated 14.03.2017 bearing reference S.O.804(E) made by the UOI which has been assailed in the instant writ petition, is hereinafter referred to as the 'impugned notification'.

3(b) The impugned notification has been made by the UOI under Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 (29 of 1986) (hereinafter referred to as 'E.P. Act' for brevity) read with Rule 5(3) of the Environment (Protection) Rules, 1986 (hereinafter referred to as 'E.P. Rules' for the sake of brevity). To simplify and encapsulate the core issue, it can be stated that vide the impugned notification, UOI has made a provision for grant of ex post facto environmental clearance for project proponents, who have commenced, continued or completed a project without obtaining clearance under the E.P. Act and the Environment Impact Assessment (hereinafter referred to as 'EIA' for brevity) notification issued under it.

3(c) The petitioner contends that when originally the notification was issued on 27.1.1994, the cut-off date to permit the violators to set their house in order was extended three times. Firstly upto 31.3.1999, secondly upto 30.6.2001 and thirdly upto 31.3.2003 by successive notifications dated 5.11.1998, 27.12.2000 and 14.5.2002 respectively.

3(d) The petitioner would contend that the second notification was issued on 14.9.2006. Under this notification, again the dates for project proponents who have violated various provisions of the E.P. Act and EIA notification thereunder, was successively extended on 16.11.2010, 12.12.2012, 27.6.2013, 10.5.2016 and now vide the impugned notification dated 14.3.2017. In other words, the impugned notification is the fifth opportunity for project proponents to set their house in order.

3(e) The petitioner has predicated the instant writ petition on the pivotal point that 'prior' clearance is imperative and non negotiable, whereas the impugned notification provides for ex post facto clearance, which according to the writ petitioner is impermissible.

3(f) We now proceed to discuss the submissions and contentions under the head 'discussion'.

Discussion :

4(a) As the impugned notification provides for ex post facto clearance, the same is being assailed by the writ petitioner primarily on three grounds and the same are as follows :

(i) Public hearing which is non negotiable has been given a go-by;

(ii) Scoping leading to EIA has been given a go-by; and

(iii) Environmental clearance is based on precautionary principle and the impugned notification militates against this basic principle.

4(b) In support of the above said challenge to the impugned notification on the aforesaid three points, learned counsel for the writ petitioner Mr. Yogeswaran relied on several judgments and judgments pressed into service are as follows :

(i) Sreeranganathan K.P. Vs. Union of India [Appeal Nos.172, 173, 174 of 2013 (SZ) and Appeal Nos.1 and 19 of 2014 (SZ), dated 28.5.2014] (Before the National Green Tribunal, Southern Zone, Chennai); public hearing

(ii) Indian Council for Enviro-Legal Action and others Vs. Union of India [(1996) 3 SCC 212];

(iii) S. Nandakumar Vs. Secretary to Government of Tamil Nadu and others [W.P.Nos.10641 to 10643 of 2009, etc., dated 22.4.2010] (Madras High Court); public hearing

(iv) Utkarsh Mandal Vs. Union of India [W.P.(Civil) No.9340 of 2009, dated 26.11.2009] (Delhi High Court);

(v) S.P.Muthuraman Vs. Union of India [Original Application No.37 of 2015 and another, dated 7.7.2015] (National Green Tribunal, Principal Bench, New Delhi);

(vi) Research Foundation for Sc