1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7576-7577 OF 2021

[Arising out of SLP (C.) Nos. 11226-11227 of 2020]

Electrosteel Steels Limited ……Petitioner (s)

Versus

Union of India and Ors. Etc. ….Respondent (s)

J U D G M E N T

Indira Banerjee, J.

Leave granted.

2.These Appeals are against an order dated 16

th

September 2020

passed by a Single Bench of the High Court of Jharkhand in W.P. (C)

No.1873 of 2018 and W.P. (C) No. 4850 of 2018, discontinuing the interim

orders earlier passed by the High Court, allowing the Appellant to operate

its unit under the supervisory regulatory control of the Respondent –

Jharkhand State Pollution Control Board, hereinafter referred to as

“JSPCB”, which had been in force for over two years.

3.The Appellant owns and runs a 1.5 MTPA integrated steel plant in

Bokaro District in Jharkhand. The said steel plant in Bokaro, which

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employs 3,000 regular employees and 7000 contractual employees,

produced steel worth Rs.4,200 crores in the financial year 2019-20.

4.The Appellant claims that about 30,000 persons other than those

actually employed by the steel plant as regular or contractual employees

depend on the steel plant for their livelihood.

5.Corporate Insolvency Resolution Process (CIRP) had commenced

against the Appellant under the Insolvency and Bankruptcy Code 2016.

As successful Resolution Applicant, Vedanta Ltd. took over the Appellant

on or about 4

th

June 2018 upon payment of Rs.5,320 crores for discharge

of its debts.

6.Pollution and consequential deterioration of environment has been

assuming alarming proportions, and has become a cause of universal

concern. Fumes, smoke, emission of green house gases by use of

motors and machines and operation of mills, factories and plants cause

environmental degradation.

7.Under the aegis of the United Nations discussions and deliberations

have been held to protect and improve environment and prevent

pollution.

8.In 1972, the United Nations Conference on the Human Environment

was convened in Stockholm to work out ways and means to protect and

improve the environment. In course of deliberations, it was felt that

there was need to enact law to tackle environmental pollution. India

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participated in the conference and strongly voiced environmental

concerns.

9.The Environment (Protection) Act, 1986, hereinafter referred to as

“the 1986 Act”, has been enacted as a consequence of decisions taken

at the United Nations Conference on the Human Environment held in

Stockholm in June, 1972.

10.The statement of objects and reasons for enactment of the 1986

Act declares that the Act has been prompted by concern over

environment, that has grown the world over, since the sixties.

11.Sub-Section (1) of Section 3 of the 1986 Act empowers the Central

Government to take all such measures as it might deem necessary or

expedient for the purpose of protecting and improving the quality of the

environment and preventing, controlling and abating environmental

pollution.

12.Sub-section (2) of Section 3 of the 1986 Act enables the Central

Government to take, inter alia, the following measures:

“(i) co-ordinationofactionsbytheState

Governments, officers and other authorities—

(a) under this Act, or the rules made thereunder; or

(b) under any other law for the time being in force which is

relatable to the objects of this Act;

(ii) planning and execution of a nation-wide programme for the

prevention, control and abatement of environmental pollution;

(iii) laying down standards for the quality of environment in its

various aspects;

(iv) laying down standards for emission or discharge of

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environmental pollutants from various sources whatsoever:

Provided that different standards for emission or discharge may

be laid down under this clause from different sources having

regard to the quality or composition of the emission or discharge

of environmental pollutants from such sources;

(v) restriction of areas in which any industries, operations or

processesor class of industries, operations or processes shall

not be carried out or shall be carried out subject to certain

safeguards;

(vi) laying down procedures and safeguards for the prevention of

accidents which may cause environmental pollution and

remedial measures for such accidents;

(vii) laying down procedures and safeguards for the handling of

hazardous substances;

(viii) examination of such manufacturing processes, materials

and substances as are likely to cause environmental pollution;

(ix) carrying out and sponsoring investigations and research

relating to problems of environmental pollution;

(x) inspection of any premises, plant, equipment, machinery,

manufacturing or other processes, materials or substances and

giving, by order, of such directions to such authorities, officers or

persons as it may consider necessary to take steps for the

prevention, control and abatement of environmental pollution;

(xi) establishment or recognition of environmental laboratories

and institutes to carry out the functions entrusted to such

environmental laboratories and insitutes under this Act;

(xii)collection and dissemination of information in respect of

matters relating to environmental pollution;

(xiii)preparation of manuals, codes or guides relating to the

prevention, control and abatement of environmental pollution;

(xiv) such other matters as the Central Government deems

necessary or expedient for the purpose of securing the effective

implementation of the provisions of this Act.”

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13.Sub-section (3) of Section 3 of the 1986 Act provides as follows:

“The Central Government may, if it considers it necessary or

expedient so to do for the purposes of this Act, by order,

published in the Official Gazette, constitute an authority or

authorities by such name or names as may be specified in the

order for the purpose of exercising and performing such of the

powers and functions (including the power to issue directions

under Section 5) of the Central Government under this Act and

for taking measures with respect to such of the matters referred

to in sub-section (2) as may be mentioned in the order and

subject to the supervision and control of the Central Government

and the provisions of such order, such authority or authorities

may exercise the powers or perform the functions or take the

measures so mentioned in the order as if such authority or

authorities had been empowered by this Act to exercise those

powers or perform those functions or take such measures.”

14.Subject to the provisions of the 1986 Act, the Central Government

has power under sub-section (1) of section 3 to take all such measures as

it deems necessary or expedient for the purpose of protecting and

improving the quality of the environment and preventing, controlling and

abating environmental pollution.

15. Section 5 of the 1986 Act provides that notwithstanding anything

contained in any other law, but subject to the provisions of the 1986 Act,

the Central Government may, in exercise of its powers and performance

of its functions under the 1986 Act, issue directions in writing to any

person, officer or any authority and such person, officer or authority shall

be bound to comply with such directions.

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16. In exercise of powers conferred by Sub-Section (1) and clause (v) of

sub-section (2) of Section 3 of the 1986 Act read with Rule 5(3)(d) of the

Environment (Protection) Rules, 1986 the Central Government issued the

Environmental Impact Assessment Notification dated 27

th

January 1994

directing that on and from the date of publication of the said notification

in the Official Gazette, expansion or modernisation of any activity or a

new project listed in Schedule I of the Notification shall not be undertaken

in any part of India, unless it has been accorded Environmental Clearance

(EC) by the Central Government in accordance with the procedure

specified in the Notification.

17.Under Clause (2)(I) of the said Notification, any person who desires

to undertake any new project listed in Schedule I is required to submit an

application to the Secretary, Ministry of Environment and Forests (MoEF),

New Delhi in the pro forma specified in Schedule II, accompanied by a

project report which is to include the EIA (Environmental Impact

Assessment) Report /Environment Management Plan (EMP) prepared in

accordance with the guidelines issued by MoEF. Another Environmental

Impact Notification was issued in 2006, for grant of Terms and

Environmental Clearance inter alia for projects which had started work on

site.

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18. The EIA Report submitted with the application of the project

proponent is to be evaluated and assessed by the Impact Assessment

Agency (IAA), that is MoEF, and if deemed necessary, it may consult a

Committee of Experts constituted in the manner prescribed in Schedule

III. The Committee of Experts shall have full right of entry and inspection

of the site. The Impact Assessment Agency is to prepare a set of

recommendations based on technical assessment of documents and

data, furnished by the project proponent, supplemented by data collected

during visits to sites, interaction with the affected population and

environmental groups, if necessary. The summary of the reports, the

recommendations and the conditions, subject to which EC is given shall,

subject to public interest, be made available to the parties concerned or

environmental groups on request. The IAA may solicit comments of the

public within the specified period by arranging public hearings for that

purpose. The public shall, subject to public interest, be provided access,

to the summary of the EIA Report/Environment Management Plan (EMP).

The clearance granted for commencement of the construction or

operation of the plant, is to be valid for five years. Clause IV of the

Environmental Impact Assessment Notification provides for the

monitoring of the implementation of the conditions of EC and/or the

recommendations and conditions laid down by IAA.

19. A minor amendment was made to the said Environmental Impact

Assessment Notification dated 27

th

January 1994, by a Notification dated

10

th

April 1997, which prescribes a detailed procedure for public hearing.

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20.By a notification being S.O. 327(E), dated 10

th

April 2001, published

in the Gazette of India, Extra., Pt.II, Sec.3(ii), dated 12

th

April 2001, the

Central Government has delegated the powers vested in it under Section

5 of the 1986 Act, to the Chairpersons of the respective State Pollution

Control Boards/Committees to issue directions to any industry or any

local or other authority for the violations of the standards and rules

relating to biomedical waste, hazardous chemicals, industrial solid waste

and municipal solid waste including plastic waste notified under the

Environment (Protection) Act, 1986 subject to the condition that the

Central Government may revoke such delegation of powers or may itself

invoke the provisions of Section 5 of the said Act, if in the opinion of the

Central Government such a course of action is necessary in the public

interest.

21. On or about 8

th

January 2007, the Appellant applied to the Ministry

of Environment, Forest and Climate Change, Government of India,

hereinafter referred to as “MoEF&CC” for grant of EC to establish 3 MTPA

integrated steel plant at Mauza South Parbatpur of Chandankiyari Block

of Bokaro District.

22.In its application, the Appellant stated that 1350 acres of land were

required for establishing the said plant at the Mauza South Parbatpur of

Chandankiyari Block of Bokaro District and that no forest land was

involved in the project.

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23.By a letter No. F.No.J-11011/137/2006-1A-II (i) dated 21

st

February

2008, the Appellant was granted EC. After obtaining EC, the Appellant

applied to the JSPCB, for grant of ‘Consent to Establish’ (CTE) under the

Air (Prevention and Control of Pollution) Act, 1981, hereinafter referred to

as the Air Pollution Act, and Water (Prevention and Control of Pollution)

Act 1974, hereinafter referred to as the Water Pollution Act.

24.On 5

th

May 2008, the JSPCB granted CTE to the Appellant to

establish the 3 MTPA integrated steel plant at Mauza South Parbatpur of

Chandankiyari Block of Bokaro District. The CTE was granted on the

basis of the EC granted by the MoEF&CC.

25.The CTE was extended from time to time till 4

th

May 2011. Even

though CTE was granted to the Appellant to establish a steel plant at

Mauza South Parbatpur of Chandankiyari Block of Bokaro District, the

Appellant established steel plant in Mauza Bhagabandh in the Chas Block

in Bokaro District, 5.3 Kms away from the site for which EC and CTE had

been granted.

26.A Circular No.J-11013/41/2006-1A.2(i) dated 22

nd

January, 2010 was

issued by the Ministry of Environment and Forest (MoEF) of the

Government of India which provided as follows:

“Instances have come to the notice of this Ministry wherein the

project proponents have changed the project site after the said

project has been granted environmental clearance or after the

public hearing has been held. The project proponents have

approached this Ministry to revalidate the environmental

clearance so granted without undergoing afresh the procedure

prescribed for obtaining environmental clearance. The matter

has been considered in the ministry. The change in project site

would lead to change in project affected people as well as the

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change in study area and the impact zone. As such the

Environment Impact Assessment Report and Public Hearing

conducted for a particular location cannot be taken valid for the

changed location.

Accordingly, it has been decided that any shift in project site

location after holding of public hearing will be deemed to be a

new proposal and will be appraised afresh as per the procedure

prescribed under EIA Notification 2006 provided the respective

Expert Appraisal Committee is satisfied that the shift is so minor

as to have no change in EIA/EMP, duly recorded in the minutes

and prior approval of advisor (In-charge)/SEIAA for Category

‘A’/Category ‘B’ projects respectively is obtained for not holding

the public hearing for the changed location afresh.

This issues with the approval of the Competent Authority.”

27.By a communication being Reference No.1142 dated 4

th

May 2010,

the District DFO (District Forest Officer) Bokaro requested JSPCB to take

action against the Appellant for setting up its integrated steel plant on

forest land in Mauza Bhagabandh of Chas Block of Bokaro District, in

violation of the Forest Conservation Act 1980 and Indian Forest Act 1927.

The DFO, Bokaro reported encroachment of 220.88 acres of notified

forest land by the Appellant to JSPCB.

28.It appears that cases had been initiated against the officials of the

Appellant under the Indian Forest Act, 1927, Forest Conservation Act,

1980 and the Bihar Public Land Encroachment Act, 1955 which have been

quashed by the Jharkhand High Court, by an order dated 25

th

January

2011.

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29.On or about 23

rd

September 2010 the Appellant applied for Consent

to Operate (CTO) under the Air Pollution Act and the Water Pollution Act

for its 350 m

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blast furnace. Later on 9

th

September 2011, the Appellant

applied for CTO in respect of its entire plant.

30.By a letter dated 2

nd

December 2011, addressed to the Appellant,

the MoEF confirmed that the lay out of the Appellant’s 3 MTPA Integrated

Steel Plant was well within the Environment Impact Area and that the

affected people had the opportunity to participate in a public hearing.

31.By letter dated 18

th

May 2012, the JSPCB reported encroachment

by the Appellant upon forest land and alleged violation by the Appellant

of the Forest Conservation Act, 1980 to the MoEF&CC, New Delhi. The

MoEF&CC was also informed of the unauthorized shifting of the

integrated steel plant from Mauza South Parbatpur of Chandankiyari

Block of Bokaro District to Mauza Bhagabandh of Chas Block of Bokaro

District in violation of the conditions of Environment Clearance granted

by the MoEC&CC.

32.Pursuant to the report of JSPCB, MoEF&CC issued a Show Cause

Notice dated 6

th

June 2012 to the Appellant under Section 5 of the 1986

Act. The Appellant submitted its reply to the Show Cause Notice on 20

th

June 2012.

33.On 10

th

September 2012, the Appellant once again applied to JSPCB

for CTO for one year under the Water Pollution Act and Air Pollution Act.

According to the Appellant, several reminders were sent to MoEF&CC

requesting MoEF&CC to intimate JSPCB of the outcome of the Show Cause

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Notice issued to the Appellant. However, JSPCB has not been informed of

the decision of MoEF&CC.

34.The Appellant filed a Writ Petition being W.P. No.2247/2012 in the

Jharkhand High Court for orders on JSPCB to grant the Appellant CTO. The

said writ petition was disposed of by an order dated 5

th

November 2012,

the operative part whereof is set out hereinbelow:-

“Respondent 1& 2 to consider the petitioner’s application and as

assured by them, if so required, give an opportunity of hearing to

the petitioners and after taking into consideration the facts and

provisions of law and the related decisions, shall dispose of the

petitioner’s application within five weeks from the date of

receipt/production of a copy of this order.”

35.On or about 27

th

November 2013, the application of the Appellant

for CTO was rejected on the ground that the Appellant had shifted the

site of its steel Plant and had encroached upon forest land in violation of

the Forest Conservation Act, 1980. The operative part of the order dated

27

th

November 2013 reads:-

“at this stage subject to final outcome of the decision of MoEF&CC,

New Delhi with respect to show cause notice dated 6.6.2012, we

dispose the application for CTO in exercise of power conferred u/s

21(4) of Air (Prevention and Control of Pollution) Act, 1981 & u/s

25(4) of Water (Prevention and Control of Pollution) Act, 1974 by

“refusing” the CTO to the unit for the reason aforesaid.”

36.The Appellant filed an application for contempt being Contempt

Case (C) No.939 of 2013 in W.P.(C) No.2247 of 2012 in the Jharkhand

High Court. Pursuant to an order dated 29

th

November 2013 in the

Contempt Petition, the JSPCB disposed of the applications for grant of

CTO to the Appellant.

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37.By a letter dated 17

th

April 2013, the MoEF&CC had called for a

status report from the State of Jharkhand in respect of forest land

encroached by the Appellant. The Forest Department submitted a report

to the MoEF&CC on 13

th

May, 2014.

38.Thereafter, by a letter dated 20

th

October 2014, the MoEF&CC,

New Delhi directed the Department of Forest, Environment and Climate

Change, Government of Jharkhand to take action against the Appellant

for violating the provisions of Indian Forest Act, 1927 and Forest

Conservation Act, 1980. In compliance with the aforesaid order, JSPCB

directed the Appellant to close down its plant under Section 31(A) of the

Air Pollution Act and Section 33(A) of Water Pollution Act.

39.By a Memo No.521 dated 6

th

February 2015, the Department of

Forest, Environment and Climate Change, Government of Jharkhand

directed the DGP, Jharkhand, Ranchi and the Deputy Commissioner,

Bokaro to take action against the Appellant in the light of the letter

dated 20

th

October, 2014 of the MoEF&CC, Government of India and to

submit an action taken report.

40. The aforesaid order of JSPCB was challenged by the Appellant by

filing a Writ Petition being WP(C) No.2033 of 2015 in the Jharkhand High

Court. By an order dated 5

th

February 2016 the High Court set aside the

order of the JSPCB holding that the same had been passed in violation of

principles of natural justice. The High Court however, held that JSPCB

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would be at liberty to pass an order in accordance with law after giving

the Appellant an opportunity of hearing.

41.Thereafter, a show cause notice dated 25

th

April 2016, was issued

to the Appellant. The Appellant replied to the show cause notice on 28

th

September 2016, contending that the Appellant had not set up its plant

on any forest land and that all pollution control measures had been

taken. However, the Principal Chief Conservator of Forests (PCCF),

Jharkhand had by a communication No.2966 dated 8

th

August 2016

informed JSPCB that the Appellant had encroached forest land.

Thereafter JSPCB once again called upon the Appellant to show cause in

the light of information provided by the PCCF, Jharkhand. The Appellant

by a letter dated 28

th

September 2016 reiterated that there was no

forest land in the plant premises.

42.JSPCB passed an order No.B-319 dated 13

th

February 2017

disposing of the show cause notice in the light of the direction dated 5

th

February 2016 of the Jharkhand High Court and the applications for CTO.

JSPCB granted CTO to the Appellant which was valid till 31

st

December,

2017.

43.The MoEF&CC and the State Environment Impact Assessment

Authorities had, in the meanwhile been receiving proposals under the

Environment Impact Assessment Notification, 2006 for grant of Terms of

Reference and Environmental Clearance for projects which had started

the work on site, expanded the production beyond the limit of

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environmental clearance or changed the product mix without obtaining

prior environmental clearance.

44.The MoEF&CC deemed it necessary that all entities not complying

with the environmental regulation under Environment Impact Assessment

Notification, 2006, be brought to comply with the environmental laws in

expedient manner, for the purpose of protecting and improving the

quality of the environment and reducing environmental pollution.

45.The MoEF&CC deemed it necessary to bring such projects and

activities in compliance with the environmental laws at the earliest point

of time, rather than leaving them unregulated and unchecked, which

would be more damaging to the environment.

46.In furtherance of this objective, the Government of India deemed it

essential to establish a process for appraisal of cases of violation of

norms, and prescribing such adequate environmental safeguards that

would deter violation of the provisions of Environment Impact

Assessment Notification, 2006 and ensure that damage to environment

was adequately compensated for.

47.In Indian Council for Enviro-Legal Action and Ors. v. Union of

India and Ors.

1

, the Supreme Court analyzed relevant provisions of

environmental laws and concluded that damages might be recovered

under the provisions of the 1986 Act, inter alia, to implement measures

that were necessary or expedient for protecting and promoting the

1. (1996) 3 SCC 212

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environment. This Court affirmed that the power of the Central

Government under Section 3 of the 1986 Act was wide and included the

power to prohibit an activity, close an industry, direct to carry out

remedial measures, and wherever necessary impose the cost of remedial

measures upon the offending industry. The question of liability of the

respondents to defray the costs of remedial measures could also be

looked into from the principle “polluter pays.”

48.In exercise of power under Section 3(1) and Section 3(2)(v) of the

1986 Act read with Rule 5(3)(d) of the Environment (Protection) Rules,

1986, the Central Government has issued a Notification being S.O. 804(E)

dated 14

th

March 2017 which provides for grant of ex post facto EC for

project proponents who have commenced, continued or completed a

project without obtaining EC under the 1986 Act or the EIA notification

issued under it.

49. Paragraphs 3, 4 and 5 of the said notification, read as follows :

“(3)In cases of violation, action will be taken against the

project proponent by the respective State or State Pollution

Control Board under the provisions of section 19 of the

Environment (Protection) Act, 1986 and further, no consent to

operate or occupancy certificate will be issued till the project is

granted the environmental clearance.

(4)The cases of violation will be appraised by respective

sector Expert Appraisal Committees constituted under sub-

section (3) of Section 3 of the Environment (Protection) Act,

1986 with a view to assess that the project has been

constructed at a site which under prevailing laws is permissible

and expansion has been done which can be run sustainably

under compliance of environmental norms with adequate

environmental safeguards; and in case, where the finding of the

Expert Appraisal Committee is negative, closure of the project

will be recommended along with other actions under the law.

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(5)In case, where the findings of the Expert Appraisal

Committee on point at sub-para(4) above are affirmative, the

projects under this category will be prescribed the appropriate

Terms of Reference for undertaking Environment Impact

Assessment and preparation of Environment Management Plan.

Further, the Expert Appraisal Committee will prescribe a specific

Terms of Reference for the project on assessment of ecological

damage, remediation plan and natural and community resource

augmentation plan and it shall be prepared as an independent

chapter in the environment impact assessment report by the

accredited consultants. The collection and analysis of data for

assessment of ecological damage, preparation of remediation

plan and natural and community resource augmentation plan

shall be done by an environmental laboratory duly notified under

Environment (Protection) Act, 1986, or a environmental

laboratory accredited by National Accreditation Board for Testing

and Calibration Laboratories or a laboratory of a Council of

Scientific and Industrial Research institution working in the field

of environment.”

50.On or about 24

th

August 2017, the Appellant applied for CTO for five

years. On 13

th

November 2017, JSPCB issued a Show Cause Notice to the

Appellant pointing out alleged contraventions of the conditions of

Consent to Operate (CTO) earlier granted to the Appellant. The

Appellant was called upon to show cause whether conditions of the CTO

had been contravened while the application of the Appellant for CTO for

five year was pending.

51.On 23

rd

November 2017, the Appellant submitted its online reply to

the Show Cause Notice showing compliance of the conditions of the CTO.

52.By a communication No.2105 dated 18

th

December 2017 JSPCB

requested MoEF&CC to inform JSPCB of the decision on the show cause

notice issued to the Appellant under Section 5 of the 1986 Act for

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revocation of the EC for non compliance of the conditions for grant of EC

for the integrated plant at Parbatpur, Jharkhand.

53.Aggrieved by the failure of JSPCB to issue/renew the CTO to the

Appellant, pursuant to its application made on 24

th

August 2017, the

Appellant filed a writ petition being W.P.(C) No. 1873 of 2018 in the

Jharkhand High Court on or about 12

th

April 2018 seeking directions on

the JSPCB to issue CTO to the Appellant.

54.By an order dated 16

th

July 2018, the High Court directed the JSPCB

to take a final decision on the application of renewal/grant of CTO filed

by the Appellant on 24

th

August 2017 within the time stipulated in the

said order.

55.The High Court further passed an interim order directing that the

Appellant be allowed to operate its unit under the supervisory and

regulatory control of the JSPCB, who might carry out periodical check as

to adherence by the Appellant of pollution control laws.

56.JSPCB passed an order dated 21

st

August, 2018, rejecting at that

stage the request of the Appellant for CTO, subject to the decision of

MoEF&CC on the show cause notice issued to the appellant. The

operative part of the said order is set out hereinbelow:

“at this stage subject to final outcome of the decision of

MoEF&CC, New Delhi with respect to show cause notice

dated 6.6.2012, we dispose the application for CTO in

exercise of power conferred u/s 21(4) of Air (Prevention and

Control of Pollution) Act, 1981 & u/s 25(40 of Water

(Prevention and Control of pollution) Act, 1974 by “refusing”

the CTO to the unit for the reason aforesaid.”

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57.The Appellant, thereafter approached the High Court with a prayer

for amendment of Writ Petition No.1873 of 2018. By an order dated 25

th

August 2018, the High Court allowed the application for amendment of

the Writ Petition and directed the respondent to file their response to the

amended writ petition. The High Court further directed:-

“10. So far as interim relief is concerned, this court finds that the

order passed by the respondent-Jharkhand State Pollution

Control Board dated 23.08.2018 appears to be directly

dependent on the final decision which is yet to be taken by the

Ministry of Environment, Forest & Climate Change on the show

cause issued to the petitioner as back as in the year 2012. As

per the submission made by the counsel appearing on behalf of

Union of India, they are shortly going to take a final decision in

the matter after hearing the petitioner. Accordingly the

operation, implementation and execution of the order dated

23.08.2018 passed by Jharkhand State Pollution Control Board is

hereby stayed till 27.09.2018 and the interim order dated

16.07.2018 is hereby extended till 27.09.2018.

11.So far as decision of the Ministry of Environment, Forest &

Climate Change are concerned, considering the fact that the unit

of the petitioner is running unit and large number of employees

are working in this unit of the petitioner, this court consider it

appropriate that the issue regarding the environmental

clearance of the petitioner should be decided at the earliest.

12.It is further observed that it is open to the petitioner to

approach the Union of India with their proposal/ application for

regularization of the alleged violation, without prejudice to their

rights (including right, title, interest, possession and nature of

property of the petitioner) and advance submissions before the

respondent authority of Union of India pursuant to the show

cause notice issued to them dated 6.6.2012 and the appropriate

authority may, if possible, simultaneously consider the aforesaid

application of the petitioner for regularization along with the

show cause reply of the petitioner such that entire dispute is

decided and the petitioner may also have a clarity about the fate

of its unit . The decision which is to be taken by the Union of

India be brought on record by either of the parties by filing

supplementary affidavit latest by 25.09.2018.

13.I.A. No. 7610 of 2018 and I.A No. 7613 OF 2018 are hereby

disposed of.

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14.It is made clear that this court has not gone into the merits of

the claim of the petitioner and it will be open to the respondent

no 3 to take decision as per law.”

58.By the aforesaid order dated 25

th

August 2018, the High Court

directed MoEF to take a decision on the application of the Appellant for

EC as also a decision regarding violation by the Appellant of the

provisions of EC by encroachment upon forest land by shifting the

location of the plant.

59.On 31

st

August 2018, MoEF&CC issued a show cause notice No. F.No.

J-11011/137/2006-1A Pt.II (i) dated 31

st

August 2018 to the Appellant for

violating the provisions of the EC by shifting the location of its plant and

encroaching upon forest land.

60.The Respondent No.1 was also accorded personal hearing on 10

th

September 2018. On 12

th

September 2018 Mr. Gyanesh Bharti who

presided over the personal hearing was transferred from MoEF&CC.

61.On 20

th

September 2018 the Respondent No.1 issued an order

bearing No.F.No.J-11011/137/2006-IA.II(I) revoking the EC of the

Appellant on the ground that the Appellant had encroached upon 220

acres of forest land and had shifted the location of its plant from

Parbatpur to Bhagabandh, violating the conditions stipulated in the EC.

62.The Appellant filed Writ petition being W.P. (C) No.4850 of 2018 in

the Jharkhand High Court challenging the revocation of the EC granted

to the Appellant.

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63.On 27

th

September 2018 the High Court passed an interim order

staying the operation, implementation and execution of the impugned

order dated 20

th

September 2018. The Court prima facie found that the

impugned order, passed in violation of principles of natural justice, had

serious repercussions on the unit of the Appellant which was a running

unit, and had caused prejudice to the Appellant.

64.On 4

th

October 2018, the Appellant applied for ex post facto Forest

Clearance (FC) without prejudice to its rights and contentions. On 27

th

November 2019 the Appellant applied for a “revised” EC without

prejudice to its rights and contentions. In the meanwhile, the Interim

order passed by the High Court on 27

th

September 2018 was extended

from time to time. Such extensions were granted on 10.10.2018,

5.11.2018, 11.12.2018, 8.1.2019, 23.1.2019, 16.5.2019, 25.7.2019 and

17.10.2019.

65.On 17

th

December 2019, MoEF&CC passed an order according ex

post facto in principle approval for the forest diversion/clearance

proposal of the Appellant. The operative part of the said order reads:-

“After careful examination of the proposal of the State

Government and on the basis of the recommendations of the

Forest Advisory Committee and approval of the same by the

competent authority of the MoEF&CC, New Delhi, the Central

Government hereby accords ex-post facto ‘in-principle’ approval

under Section -2 of the Forest (Conservation) Act, 1980 for

diversion of 184.23 ha of forest land (174.39 ha encroached (ex-

post facto) and 9.84 ha virgin land) in favour of M/s Electrosteel

Steels Limited in the State of Jharkhand subject to fulfilment of

following conditions:-

(i) Legal status of the diverted forest land shall remain

unchanged;...”

22

66.By an order dated 26

th

February 2020, the Jharkhand High Court

directed that the pendency of W.P. (C) No. 4850 of 2018 and W.P. (C)

No.1873 of 2018 would not come in the way of consideration by the

MoEF&CC of grant or refusal of restoration of EC and it would be open to

the Ministry to take appropriate decision in accordance with law. The

interim orders in force were extended.

67. Thereafter by a letter dated 2

nd

March 2020, the Appellant requested

MoEF&CC to consider the application of the Appellant for revised EC. In

the meanwhile, the interim orders passed by the High Court were further

extended. The interim orders were extended by orders passed on

26.2.2020, 7.4.2020 and 29.5.2020.

68.The Writ Petition was called for hearing on 19

th

June 2020

whereupon it was submitted on behalf of the Respondent No.1 that the

revised EC application of the Appellant would be placed before the Expert

Appraisal Committee (EAC) for consideration on merit and Violation

Committee would decide on the action to be taken against the Appellant

for violation of Environment (Protection) Act, 1986.

69.On 6

th

August 2020 and 7

th

August 2020, the case of the Appellant

was placed before the EAC at its 35

th

meeting. The Appellant was invited

to present its proposal online before the Committee.

23

70.After detailed deliberation, the EAC appraised the proposal on

merits and recommended issuance of Standard Terms of Reference along

with Specific Terms of Reference for undertaking Environmental Impact

Assessment (EIA) and preparation of Environment Management Plan

(EMP). The EAC noted that the plant was a running unit and the EC was

subject to the conditions imposed in the Terms of Reference.

71.On 4

th

September 2020, the Jharkhand High Court extended the

interim orders till 8

th

September 2020 while awaiting response from the

Respondents. On 8

th

September 2020, the High Court reserved orders on

the extension of interim orders dated 16

th

July 2018 and 27

th

September

2018 while listing the writ petitions for final hearing on 16

th

September

2020.

72.On 15

th

September 2020, the Respondent No.1 filed an affidavit

stating that it had no objection to extension of the interim orders

considering that the steel plant employed a large workforce. At the

hearing on 16

th

September 2020 JSPCB also consented to extension of the

interim order. However, the High Court passed the impugned order

dated 16

th

September 2021 dis-continuing the earlier interim orders on,

inter alia, the following grounds:

(i)The Expert Appraisal Committee of the MoEF&CC had, after

detailed deliberations, found that the Appellant had been in

violation of the EIA Notification 2006 and general condition no.

(ii) of the EC dated 21.02.2008.

(ii)The MoEF&CC had while issuing ToR for grant of EC

recommended action against the Appellant under Section 19 of

24

the 1986 Act for past violations. Extension of the interim orders

would amount to staying action.

(iii)In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati and

Others

2

, this Court had deprecated ex post facto Ecs but passed

certain directions in exercise of powers under Article 142 of the

Constitution.

73.By an Office Memorandum, being F.No. 22-21/2020-1A III, dated 7

th

July 2021, the MoEF&CC issued Standard Operating Procedure (SOP) for

Identification and Handing of violation cases under EIA Notification 2006.

74.The said Office Memorandum, inter alia, reads:

“The Ministry had issued a notification number S.O.804(E), dated

the 14

th

March, 2017 detailing the process for grant of Terms of

Reference and Environmental Clearance in respect of projects or

activities which have started the work on site and/ or expanded

the production beyond the limit of Prior EC or changed the

product mix without obtaining Prior EC under the EIA Notification,

2006.

2. This Notification was applicable for six months from the date of

publication i.e. 14.03.2017 to 13.09.2017 and further based on

court direction from 14.03.2018 to 13.04.2018.

3. Hon’ble NGT in Original Application No. 287 of 2020 in the

matter of Dastak N.G.O. Vs Synochem Organics Pvt. Ltd. &Ors.

and in applications pertaining to same subject matter in Original

Application No. 298 of 2020 in Vineet Nagar Vs. Central Ground

Water Authority &Ors., vide order dated 03.06.2021 held that

"( ... ) for past violations, the concerned authorities are

2 2020 SCC OnLine SC 347

25

free to take appropriate action in accordance with

polluter pays principle, following due process”.

4. Further, the Hon'ble National Green Tribunal in O.A No.

34/2020 WZ in the matter of Tanaji B. Gambhire vs. Chief

Secretary, Government of Maharashtra and ors., vide order dated

24.05.2021 has directed that " ... a proper SoP be laid down

for grant of EC in such cases so as to address the gaps in

binding law and practice being currently followed. The

MoEF may also consider circulating such SoP to all SEIAAs

in the country".

5. Therefore, in compliance to the directions of the Hon'ble NGT a

Standard Operating Procedure (SoP) for dealing with violation

cases is required to be drawn. The Ministry is also seized of

different categories of 'violation' cases which have been pending

for want of an approved structural/procedural framework based

on ‘Polluter Pays Principle’ and ‘Principle of Proportionality’. It is

undoubtedly important that action under statutory provisions is

taken against the defaulters/violators and a decision on the

closure of the project or activity or otherwise is taken

expeditiously.

6.In the list of the above directions of the Hon’ble Tribunal

and the issues involved, the matter has accordingly been

examined in detail in the Ministry. A detailed SoP has accordingly

been framed and is outlined herein. The SoP is also guided by

the observations/decisions of the Hon’ble Courts wherein

principles of proportionality and polluters pay have been

outlined.”

26

75.The Standard Operating Procedure formulated by the said Office

Memorandum dated 7

th

July 2021 refers to and gives effect to various

judicial pronouncements including the judgment of this Court in Alembic

Pharmaceuticals (supra).

76.In terms of the Standard Operating Procedure, the proposal for

grant of EC in cases of violation are to be considered on merits, with

prospective effect, applying principles of proportionality and the principle

that the polluter pays and is liable for costs of remedial measures.

77.By an interim order passed on 15

th

July 2021 in WP(MD) 11757 of

2021 in Fatima vs. Union of India, the Madurai Bench of Madras High

Court has stayed the operation of the Standard Operating Procedure.

78.By an order dated 25

th

August 2021, MoEF&CC rejected the

application of the Appellant for the time being. The application has, in

effect, been kept in abeyance.

79.The MoEF apparently did not take any decision on the application of

the Appellant for EC, since the Standard Operating Procedure issued by it

has been stayed by the Madurai Bench of Madras High Court, by the said

order dated 15

th

July 2021, citing the judgment of this Court in Alembic

Pharmaceuticals (supra).

80.The Appellant has filed an application being I.A No.125221 of 2021

in this appeal seeking directions on the Respondent No.1 to process the

Appellant’s application dated 5

th

August 2020 for revised EC.

27

81.There can be no doubt that the need to comply with the

requirement to obtain Environment Clearance is non-negotiable. A

project can be set up or allowed to expand subject to compliance of the

requisite norms. Environmental clearance is granted on condition of the

suitability of the site to set up the project from the environmental angle,

and existence of necessary infrastructural facilities and equipment for

compliance of environmental norms. To protect future generations, it is

imperative that pollution laws be strictly enforced. Under no

circumstances, can industries which pollute be allowed to operate

unchecked and degrade the environment.

82.The question is whether an establishment contributing to the

economy of the country and providing livelihood to hundreds of people

should be closed down for the technical irregularity of shifting its site

without prior environmental clearance, without opportunity to the

establishment to regularize its operation by obtaining the requisite

clearances and permissions, even though the establishment may not

otherwise be violating pollution laws, or the pollution, if any, can

conveniently and effectively be checked. The answer has to be in the

negative.

83.The Central Government is well within the scope of its powers

under Section 3 of the 1986 Act to issue directions to control and/or

prevent pollution including directions for prior Environmental Clearance

before a project is commenced. Such prior Environmental Clearance is

necessarily granted upon examining the impact of the project on the

28

environment. Ex-Post facto Environmental Clearance should not ordinarily

be granted, and certainly not for the asking. At the same time ex post

facto clearances and/or approvals and/or removal of technical

irregularities in terms of Notifications under the 1986 Act cannot be

declined with pedantic rigidity, oblivious of the consequences of stopping

the operation of a running steel plant.

84. The 1986 Act does not prohibit ex post facto Environmental

Clearance. Some relaxations and even 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 the

projects are in compliance with, or can be made to comply with

environment norms, is in over view not impermissible. The Court cannot

be oblivious to the economy or the need to protect the livelihood of

hundreds of employees and others employed in the project and others

dependent on the project, if such projects comply with environmental

norms.

85.As held by a three Judge Bench of this Court in Lafarge Umiam

Mining Private Limited v. Union of India

3

(“Lafarge”) reported in (2011) 7

SCC 338:

“119. The time has come for us to apply the constitutional

“doctrine of proportionality” to the matters concerning

environment as a part of the process of judicial review in

contradistinction to merit review. It cannot be gainsaid

that utilization of the environment and its natural

resources has to be in a way that is consistent with

principles of sustainable development and

intergenerational equity, but balancing of these equities

may entail policy choices. In the circumstances, barring

3. (2011) 7 SCC 338

29

exceptions, decisions relating to utilization of natural resources

have to be tested on the anvil of the well- recognized principles

of judicial review. Have all the relevant factors been taken into

account? Have any extraneous factors influenced the decision? Is

the decision strictly in accordance with the legislative policy

underlying the law (if any) that governs the field? Is the decision

consistent with the principles of sustainable development in the

sense that has the decision-maker taken into account the said

principle and, on the basis of relevant considerations, arrived at a

balanced decision? Thus, the Court should review the decision-

making process to ensure that the decision of MoEF is fair and

fully informed, based on the correct principles, and free from any

bias or restraint. Once this is ensured, then the doctrine of

“margin of appreciation” in favour of the decision-maker would

come into play.”

86.In Alembic Pharmaceuticals (supra) this Court observed:-

“27. The concept of an ex post facto EC is in derogation of the

fundamental principles of environmental jurisprudence and is an

anathema to the EIA notification dated 27 January 1994. It is, as

the judgment in Common Cause holds, detrimental to the

environment and could lead to irreparable degradation. The

reason why a retrospective EC or an ex post facto clearance is

alien to environmental jurisprudence is that before the issuance

of an EC, the statutory notification warrants a careful application

of mind, besides a study into the likely consequences of a

proposed activity on the environment. An EC can be issued only

after various stages of the decision-making process have been

completed. Requirements such as conducting a public hearing,

screening, scoping and appraisal are components of the decision-

making process which ensure that the likely impacts of the

industrial activity or the expansion of an existing industrial

activity are considered in the decision-making calculus. Allowing

for an ex post facto clearance would essentially condone the

operation of industrial activities without the grant of an EC. In the

absence of an EC, there would be no conditions that would

safeguard the environment. Moreover, if the EC was to be

ultimately refused, irreparable harm would have been caused to

the environment. In either view of the matter, environment law

cannot countenance the notion of an ex post facto clearance. This

would be contrary to both the precautionary principle as well as

the need for sustainable development.

30

87.In Alembic Pharmaceuticals (supra), this Court deprecated ex-

post facto clearances, but this Court did not pass orders for closure of

the three industries concerned, on consideration of the consequences

of their closure. This court proceeded to observe and held:-

44. The issue which must now concern the Court is the

consequence which will emanate from the failure of the three

industries to obtain their ECs until 14 May 2003 in the case of

Alembic Pharmaceuticals Limited, 17 July 2003 in the case of

United Phosphorous Limited, and 23 December 2002 in the case

of Unique Chemicals Limited. The functioning of the factories of

all three industries without a valid EC would have had an

adverse impact on the environment, ecology and biodiversity in

the area where they are located. The Comprehensive

Environmental Pollution Index

4

report issued by the Central

Pollution Control Board for 2009-2010 describes the

environmental quality at 88 locations across the country.

Ankleshwar in the State of Gujarat, where the three industries

are located showed critical levels of pollution

5

. In the Interim

Assessment of CEPI for 2011, the report indicates similar critical

figures

6

of pollution in the Ankleshwar area. The CEPI scores for

2013

7

and 2018

8

were also significantly high. This is an

indication that industrial units have been operating in an

unregulated manner and in defiance of the law. Some of the

environmental damage caused by the operation of the industrial

units would be irreversible. However, to the extent possible

some of the damage can be corrected by undertaking measures

to protect and conserve the environment.

45. Even though it is not possible to individually determine the

exact extent of the damage caused to the environment by the

three industries, several circumstances must weigh with the

Court in determining the appropriate measure of restitution. First,

it is not in dispute that all the three industries did obtain ECs,

though this was several years after the EIA notification of 1994

and the commencement of production. Second, subsequent to

the grant of the ECs, the manufacturing units of all the three

4. “CEPI”

5. CEPI score – 88.50

6. CEPI score ­ 85.75

7. CEPI score ­ 80.93

8. CEPI score ­ 80.21 

31

industries have also obtained ECs for an expansion of capacity

from time to time. Third, the MoEF had issued a circular on 5

November 1998 permitting applications for ECs to be filed by 31

March 1999, which was extended subsequently to 30 June 2001.

On 14 May 2002, the deadline was extended until 31 March 2003

subject to a deposit commensurate to the investment made. The

circulars issued by the MoEF extending time for obtaining ECs

came to the notice of this Court in Goa Foundation (I) v. Union of

India

9

. Fourth, though in the context of the facts of the case, this

Court in Lafarge Umiam Mining Private Limited v. Union of

India

10

(“Lafarge”) has upheld the decision to grant ex post

facto clearances with respect to limestone mining projects in the

State of Meghalaya. In Lafarge, the Court dealt with the

question of whether ex post facto clearances stood vitiated by

alleged suppression of the nature of the land by the project

proponent and whether there was non-application of mind by the

MoEF while granting the clearances. While upholding the ex post

facto clearances, the Court held that the native tribals were

involved in the decision-making process and that the MoEF had

adopted a due diligence approach in reassuring itself through

reports regarding the environmental impact of the project. “

(Emphasis supplied)

46. After adverting to the decision in Lafarge, another Bench of

three learned judges of this Court in Electrotherm (India)

Limited v. Patel Vipulkumar Ramjibhai

11

, dealt with the issue of

whether an EC granted for expansion to the appellant without

holding a public hearing was valid in law. Justice Uday Umesh

Lalit speaking for the Bench held thus:

“19…the decision-making process in doing away with or

in granting exemption from public consultation/public

hearing, was not based on correct principles and as such

the decision was invalid and improper.”

47. The Court while deciding the consequence of granting an EC

without public hearing did not direct closure of the appellant's

unit and instead held thus:

“20. At the same time, we cannot lose sight of the fact

that in pursuance of environmental clearance dated 27-1-

2010, the expansion of the project has been undertaken

9. (2005) 11 SCC 559

10. (2011) 7 SCC 338

11. (2016) 9 SCC 300

32

and as reported by CPCB in its affidavit filed on 7-7-2014,

most of the recommendations made by CPCB are

complied with. In our considered view, the interest of

justice would be subserved if that part of the decision

exempting public consultation/public hearing is set aside

and the matter is relegated back to the authorities

concerned to effectuate public consultation/public

hearing. However, since the expansion has been

undertaken and the industry has been functioning,

we do not deem it appropriate to order closure of

the entire plant as directed by the High Court. If the

public consultation/public hearing results in a negative

mandate against the expansion of the project, the

authorities would do well to direct and ensure scaling

down of the activities to the level that was permitted by

environmental clearance dated 20-2-2008. If public

consultation/public hearing reflects in favour of the

expansion of the project, environmental clearance dated

27-1-2010 would hold good and be fully operative. In

other words, at this length of time when the

expansion has already been undertaken, in the

peculiar facts of this case and in order to meet

ends of justice, we deem it appropriate to change

the nature of requirement of public

consultation/public hearing from pre-decisional to

post-decisional. The public consultation/public

hearing shall be organised by the authorities

concerned in three months from today.”

(Emphasis supplied)

48. Guided by the precepts that emerge from the above

decisions, this Court has taken note of the fact that though the

three industries operated without an EC for several years after

the EIA notification of 1994, each of them had subsequently

received ECs including amended ECs for expansion of existing

capacities. These ECs have been operational since 14 May 2003

(in the case of Alembic Pharmaceuticals Limited), 17 July 2003 (in

the case of United Phosphorous Limited), and 23 December 2002

(in the case of Unique Chemicals Limited). In addition, all the

three units have made infrastructural investments and employed

significant numbers of workers in their industrial units.

33

49. In this backdrop, this Court must take a balanced approach

which holds the industries to account for having operated

without environmental clearances in the past without ordering a

closure of operations. The directions of the NGT for the

revocation of the ECs and for closure of the units do not accord

with the principle of proportionality. At the same time, the Court

cannot be oblivious to the environmental degradation caused by

all three industries units that operated without valid ECs. The

three industries have evaded the legally binding regime of

obtaining ECs. They cannot escape the liability incurred on

account of such noncompliance. Penalties must be imposed for

the disobedience with a binding legal regime. The breach by the

industries cannot be left unattended by legal consequences. The

amount should be used for the purpose of restitution and

restoration of the environment. Instead and in place of the

directions issued by the NGT, we are of the view that it would be

in the interests of justice to direct the three industries to deposit

compensation quantified at Rs. 10 crores each. The amount shall

be deposited with GPCB and it shall be duly utilised for

restoration and remedial measures to improve the quality of the

environment in the industrial area in which the industries

operate. Though we have come to the conclusion, for the

reasons indicated, that the direction for the revocation of the ECs

and the closure of the industries was not warranted, we have

issued the order for payment of compensation as a facet of

preserving the environment in accordance with the

precautionary principle. These directions are issued under Article

142 of the Constitution. Alembic Pharmaceuticals Limited, United

Phosphorous Limited and Unique Chemicals Limited shall deposit

the amount of compensation with GPCB within a period of four

months from the date of receipt of the certified copy of this

judgment. This deposit shall be in addition to the amount

directed by the NGT. Subject to the deposit of the aforesaid

amount and for the reasons indicated, we allow the appeals and

set aside the impugned judgment of the NGT dated 8 January

2016 in so far as it directed the revocation of the ECs and

closure of the industries as well as the order in review dated 17

May 2016.”

34

87. The Notification being SO 804(E) dated 14

th

March, 2017 was not

an issue in Alembic Pharmaceuticals (supra). This Court was examining

the propriety and/or legality of a 2002 circular which was inconsistent

with the EIA Notification dated 27

th

January, 1994, which was statutory.

Ex post facto environmental clearance should not however be granted

routinely, but in exceptional circumstances taking into account all

relevant environmental factors. Where the adverse consequences of ex

post facto approval outweigh the consequences of regularization of

operation of an industry by grant of ex post facto approval and the

industry or establishment concerned otherwise conforms to the requisite

pollution norms, ex post facto approval should be given in accordance

with law, in strict conformity with the applicable Rules, Regulations

and/or Notifications. Ex post facto approval should not be withheld

only as a penal measure. The deviant industry may be penalised by an

imposition of heavy penalty on the principle of ‘polluter pays’ and the

cost of restoration of environment may be recovered from it.

88.We are of the view that the High Court erred in passing the

impugned order, vacating interim orders which had been in force for two

years. The impugned order is not in conformity with the principle of

proportionality. This is not a case where the steel plant was started

without environmental clearance or consent of JSPCB. The Appellant had

applied for and obtained environmental clearance to set up an integrated

steel plant (3MTPA) on 1350 acres of land at Mauza South Parbatpur, as

observed above. Environmental Clearance had been granted on 21

st

35

February 2008 and Consent to Operate had been granted by JSPCB on 5

th

May 2008.

89.The Appellant established its steel plant in Mauza Bhagaband, 5.3

kms away from the site for which EC and CTE had been granted. It is the

contention of the Appellant that the shift is minor and makes no change

in the EIA/EMP on the basis of which EC has been granted. The shift did

not require fresh public hearing in terms of the Circular dated 22

nd

January 2010 of the MoEF.

90. As aforesaid, by a letter dated 2.12.2011 addressed to the

Appellant, the MoEF confirmed that the steel plant of the Appellant was

within the Environment Impact Area and the affected people had the

opportunity to air their views in a public hearing. The question is whether

the Petitioner was required to obtain fresh prior clearance for shifting or

was covered by the exemption under the said Notification dated 22

nd

January 2010.

91.The Appellant has all along asserted that no part of the premises of

the integrated steel plant is in any forest. As such there was no violation

of the Indian Forest Act, 1927 or the Forest Conservation Act, 1980. The

MoEF had also confirmed that the steel plant in question was well within

the Environment Impact Area and the affected people had the

opportunity in a public hearing. Be that as it may, whether the shifting of

the site has really made any difference from the environmental impact

angle requires consideration by the appropriate authority/forum.

36

92.In any case, the Appellant has duly applied for ex post facto forest

clearance approval without prejudice to its rights and contentions that its

steel plant is not on forest land and also applied for revised EC. On 17

th

December 2019, MoEF&CC accorded ex post facto in principle approval to

the forest clearance proposal on the recommendations of the Forest

Advisory Committee. The application for revised clearance is pending

consideration. No final decision has however been taken, ostensibly in

view of the interim order passed by the Madras High Court staying the

operation of the Standard Operation Procedures issued vide

Memorandum dated 7

th

July 2021.

93.The interim order passed by the Madras High Court appears to be

misconceived. However, this Court is not hearing an appeal from that

interim order. The interim stay passed by the Madras High Court can

have no application to operation of the Standard Operating Procedure to

projects in territories beyond the territorial jurisdiction of Madras High

Court. Moreover, final decision may have been taken in accordance with

the Orders/Rules prevailing prior to 7

th

July, 2021.

94.In passing the impugned order the High Court overlooked the

consequences of closure of an integrated steel plant with a work force of

300 regular and 700 contractual workers. The High Court also failed to

appreciate that the judgment of this Court in Alembic Pharmaceuticals

(supra) was distinguishable on facts. Furthermore, continuance of the

interim orders allowing operation of an industrial establishment or even

the grant of revised EC to the industrial establishment cannot stand in

37

the way of action against that establishment for contraventions, including

the imposition of penalty, on the principle ‘polluter pays’. The scope

and effect of Section 32A of the IBC is a different issue. This Court need

not examine into the question of whether penal action can be initiated

against the Appellant or, whether compensation can be recovered from

the Appellant, at this stage. The issue may be decided by the

appropriate authority at the appropriate stage when it adjudicates an

action for penalization of the Appellant or recovery of compensation from

the Appellant. The application of the Appellant for revised EC, CTO etc.

shall be considered strictly in accordance with environmental norms.

95.The appeals are allowed. The impugned order is set aside. The

Respondent No.1 shall take a decision on the application of the Appellant

for revised EC in accordance with law, within three months from date.

Pending such decision, the operation of the steel plant shall not be

interfered with on the ground of want of EC, FC, CTE or CTO.

…………………………………J.

[Indira Banerjee]

……………………………….J.

[J.K. Maheshwari]

New Delhi;

December 9, 2021