2025 INSC 718 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.1394 OF 2023

VANASHAKTI …PETITIONER

Vs.

UNION OF INDIA …RESPONDENT

WITH

WRIT PETITION (C) NO.118 OF 2019

WRIT PETITION (C) NO.115 OF 2024

AND

CIVIL APPEAL NO.381-382 OF 2025

J U D G M E N T

ABHAY S. OKA, J.

1.Part IV-A of the Constitution of India containing

fundamental duties as set out in Article 51A was

incorporated in the Constitution by the 42

nd

Amendment

Act with effect from 3

rd

January 1977. Clause (g) of

Article 51A provides that it shall be the duty of every

citizen of India to protect and improve the natural

environment including forests, lakes, rivers and wildlife,

and to have compassion for living creatures. This Court

in several decisions has held that the right to live in a

Writ Petition (C) No. 1394 of 2023, etc. Page 1 of 41

pollution free atmosphere is a part of the fundamental

right guaranteed under Article 21 of the Constitution of

India.

2.The world changed rapidly after World War II. From

the late 1960s and early 1970s, slowly there was a

realisation about the drastic consequences of the

destruction of environment and pollution of various

kinds. In June 1972, at Stockholm, the United Nations

Conference on Human Environment was held. In the said

conference, several decisions were taken by the world

community to protect the environment.

3.In our country, it took fourteen years thereafter for

the legislature to come out with a law for protection and

improvement of the environment. The Environment

(Protection) Act, 1986 (for short, ‘the 1986 Act’) was

brought into force with effect from 19

th

November 1986.

As can be noticed from several orders of this Court and

the High Courts, the progress of implementation of the

1986 Act has been very slow.

4.The 1970s and 1980s saw growth of

industrialisation in our country. The activities such as

mining, gas exploration, thermal power plants, petroleum

refining industries, various other industries, building and

construction projects, such as, highways started growing.

Writ Petition (C) No. 1394 of 2023, etc. Page 2 of 41

5.Again, it took twenty years after the 1986 Act came

into force to exercise the power under sub-section (1) and

clause (v) of sub-section (2) of Section 3 of the 1986 Act

read with clause (d) of sub-rule (3) of Rule 5 of the

Environment (Protection) Rules, 1986 (for short, ‘1986

Rules’) for coming out with the Environment Impact

Assessment Notification, 2006 (for short, ‘the EIA

notification’). The EIA notification was issued on 14th

September 2006. It provided that the projects or activities

mentioned in clause (2) thereof shall require prior

Environmental Clearance (for short, ‘the EC’) from the

concerned regulatory authority. The concerned regulatory

authority in the Central Government is the Ministry of

Environment Forests and Climate Change (for short, ‘the

MoEFCC’) for matters falling under Category ‘A’ in the

Schedule, and at the State level, the State Environment

Impact Assessment Authority (for short, ‘the SEIAA’) for

the matters falling in Category ‘B’. In the Schedule,

Categories ‘A’ and ‘B’ were incorporated setting out

industries and other development work. The entire

controversy in this group of petitions is about ex post

facto grant of EC.

6.On 14th March 2017, a notification was issued by

the MoEFCC. The said notification is hereafter referred

to as ‘the 2017 notification’. The said notification was

made applicable to the projects or activities that have

Writ Petition (C) No. 1394 of 2023, etc. Page 3 of 41

started the work on site, expanded the production beyond

the limit of the EC, or changed the production mix

without obtaining EC. The 2017 notification provided

that in case of such works, ex post facto EC can be

granted. It provided that the projects or activities which

are in violation of the EIA notification as on 14th March

2017 were eligible to apply under the 2017 notification

for ex post facto EC within a period of six months from

14th March 2017.

7.The National Green Tribunal (for short, ‘the NGT’)

vide order dated 24th May 2021 directed the MoEFCC to

prepare a Standard Operating Procedure (for short, ‘the

SOP’) for grant of EC in the cases of violation so as to

address the gap in the binding law and practice being

currently followed. In purported compliance with the said

direction, Office Memorandum dated 7th July 2021 (for

short, ‘the 2021 OM’) was issued.

8.In the meanwhile, the 2017 notification was

challenged by way of a writ petition before the High Court

of Madras in the case of Puducherry Environment

Protection Association v. Union of India

1

, which was

decided by order dated 13th October 2017. During the

course of hearing of the case before the Madras High

Court, when it was pointed out that the outer limit for

making applications for grant of ex post facto EC have

1 2017 SCC OnLine Mad 7056

Writ Petition (C) No. 1394 of 2023, etc. Page 4 of 41

been repeatedly extended, the Union of India gave a

categorical undertaking that the 2017 notification was

only a one-time measure. By recording the said

submission made on behalf of the Union of India that the

2017 notification was certainly and clearly only a one

time measure, the High Court disposed of the petition.

Later on, by order dated 14th March 2018 passed by the

High Court of Madras in another case, the time period

under the 2017 notification for submission of proposals

by project proponents was extended by a further period of

thirty days.

9.In Writ Petition (C) No.1394 of 2023, the first prayer

is for quashing the 2021 OM on the ground that it was

arbitrary, illegal and ultra vires the provisions of the

1986 Act. The second prayer is for issuing a writ of

mandamus directing the MoEFCC and SEIAA/SEACs not

to process and entertain any application for ex-post facto

EC after 13th May 2018. As stated earlier, the time

granted under the 2017 notification to apply was lastly

extended till 13th April 2018.

10.In Writ Petition (C) No.118 of 2019, the challenge is

to the 2017 notification issued by the MoEFCC. A prayer

was made seeking directions to the respondents to

produce a list of real estate projects and project

proponents who have undertaken real estate development

Writ Petition (C) No. 1394 of 2023, etc. Page 5 of 41

projects without obtaining EC under the 2006

notification.

11.In Writ Petition (C) No.115 of 2024, the challenge is

to the 2017 notification and the 2021 OM. A prayer for

writ of prohibition is made for restraining the MoEFCC

from issuing any notification or office memorandum

permitting ex-post facto EC.

12.The High Court of Madras by judgment and order

dated 30th August 2024 quashed the 2021 OM and

another OM dated 19th February 2021. The challenge in

Civil Appeal No.381-382 of 2025 is to this decision of the

High Court of Madras. In the judgment and order dated

30th August 2024, the Madras High Court declared that

its order will operate only prospectively and applications

under consideration will remain unaffected. The

challenge in this appeal is only to the extent of giving

prospective effect to the impugned judgment.

THE EIA NOTIFICATION

13.Firstly, we come to the EIA notification. It has been

issued in exercise of powers under sub-Section (1) and

clause (v) of sub-Section (2) of Section 3 of the 1986 Act

read with clause (d) of sub-Rule (3) of Rule 5 of the 1986

Rules. Section 3 of the 1986 Act reads thus:

“3. Power of Central Government to take

measures to protect and improve

environment.—(1) Subject to the provisions

Writ Petition (C) No. 1394 of 2023, etc. Page 6 of 41

of this Act, the Central Government shall

have the power 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.

(2) In particular, and without prejudice to

the generality of the provisions of sub-

section (1), such measures may include

measures with respect to all or any of the

following matters, namely:—

(i) co-ordination of actions by the State

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 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

Writ Petition (C) No. 1394 of 2023, etc. Page 7 of 41

environmental pollutants from such

sources;

(v) restriction of areas in which any

industries, operations or processes or

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 institutes

under this Act;

Writ Petition (C) No. 1394 of 2023, etc. Page 8 of 41

(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.

(3) 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.”

(emphasis added)

Writ Petition (C) No. 1394 of 2023, etc. Page 9 of 41

13.1 Sub-section (1) of Section 3 sums up the very

object of the 1986 Act. Therefore, the EIA notification has

been issued not only for the purposes of protecting and

improving the quality of the environment but also for

preventing and abating environmental pollution. Sub-

section (1) of Section 3 confers general power of taking

measures on the Central Government. Sub-section (2)

confers specific power for taking measures in the matters

set out in clauses (i) to (ix) thereof. Clause (v) of sub-

section (2) of Section 3 empowers the Central

Government to take measures for putting restrictions of

areas in which any industries, operations or processes

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

safeguards.

14.Rule 5 of the 1986 Rules reads thus:

“5. Prohibition and restriction on the

location of industries and the carrying on

of processes and operations in different

areas.—(1) The Central Government may

take into consideration the following factors

while prohibiting or restricting the location

of industries and carrying on of processes

and operations in different areas:

(i) Standards for quality of environment in

its various aspects laid down for an area.

(ii) The maximum allowable limits of

concentration of various environmental

pollutants (including noise) for an area.

Writ Petition (C) No. 1394 of 2023, etc. Page 10 of 41

(iii) The likely emission or discharge of

environmental pollutants from an industry,

process or operation proposed to be

prohibited or restricted.

(iv) The topographic and climatic features

of an area.

(v) The biological diversity of the area

which, in the opinion of the Central

Government needs to be preserved.

(vi) Environmentally compatible land use.

(vii) Net adverse environmental impact

likely to be caused by an industry, process

or operation proposed to be prohibited or

restricted.

(viii) Proximity to a protected area under

the Ancient Monuments and Archaeological

Sites and Remains Act, 1958 or a sanctuary,

National Park, game reserve or closed area

notified as such under the Wild Life

(Protection) Act, 1972 or places protected

under any treaty, agreement or convention

with any other country or countries or in

pursuance of any decision made in any

international conference, association or

other body.

(ix) Proximity to human settlements.

(x) Any other factor as may be considered

by the Central Government to be relevant to

the protection of the environment in an area.

(2) While prohibiting or restricting the

location of industries and carrying on of

processes and operations in an area, the

Writ Petition (C) No. 1394 of 2023, etc. Page 11 of 41

Central Government shall follow the

procedure hereinafter laid down.

(3) (a) Whenever it appears to the Central

Government that it is expedient to impose

prohibition or restrictions on the location of

an industry or the carrying on of processes

and operations in an area, it may, by

notification in the Official Gazette and in

such other manner as the Central

Government may deem necessary from time

to time, give notice of its intention to do so.

(b) Every notification under clause (a) shall

give a brief description of the area, the

industries, operations, processes in that

area about which such notification pertains

and also specify the reasons for the

imposition of prohibition or restrictions on

the location of the industries and carrying

on of processes or operations in that area.

(c) Any person interested in filing an

objection against the imposition of

prohibition or restrictions on carrying on of

processes or operations as notified under

clause (a) may do so in writing to the

Central Government within sixty days from

the date of publication in the notification in

the Official Gazette.

(d) The Central Government shall within a

period of one hundred and twenty days from

the date of publication of the notification in

the Official Gazette consider all the

objections received against such notification

and may [within [seven hundred and

twenty-five days [,and in respect of the

States of Assam, Meghalaya, Arunachal

Writ Petition (C) No. 1394 of 2023, etc. Page 12 of 41

Pradesh, Mizoram, Manipur, Nagaland,

Tripura, Sikkim and Jammu and Kashmir

in exceptional circumstance and for

sufficient reasons within a further period of

one hundred and eighty days,]] from such

date of publication] impose prohibition or

restrictions on location of such industries

and the carrying on of any process or

operation in an area:

[Provided that on account of COVID-19

pandemic, for the purpose of this clause, the

period of validity of the notification expiring

in the financial year 2020-2021 and 2021-

2022 shall be extended up to [30th June,

2022] or six months from the end of the

month when the relevant notification would

have expired without any extension,

whichever is later.]

[(4) Notwithstanding anything contained in

sub-rule (3), whenever it appears to the

Central Government that it is in public

interest to do so, it may dispense with the

requirement of notice under clause (a) of

sub-rule (3).]”

14.1For issuing the EIA notification, power has been

exercised under clause (d) of sub-rule (3) of Rule 5 which

empowers the Central Government to impose prohibition

or restrictions on location of such industries and the

carrying on any process or operation in an area. There is

a power to impose complete prohibition on carrying on

any process or operation in an area. Clause (2) of the EIA

notification reads thus:

Writ Petition (C) No. 1394 of 2023, etc. Page 13 of 41

“2. Requirements of prior Environmental

Clearance (EC):- The following projects or

activities shall require prior environmental

clearance from the concerned regulatory

authority, which shall hereinafter referred to

be as the Central Government in the

Ministry of Environment and Forests for

matters falling under Category 'A' in the

Schedule and at State level the State

Environment Impact Assessment Authority

(SEIAA) for matters falling under Category

'B' in the said Schedule and at District level,

the District Environment Impact

Assessment Authority (DEIAA) for matters

falling under Category ‘B2’ for mining

minerals in the said Schedule, before any

construction work, or preparation of land by

the project management except for securing

the land, is started on the project or activity:

(i)All new projects or activities listed in the

Schedule to this notification;

(ii) Expansion, modernization or any change

in the product mix or raw material mix in

existing projects or activities listed in the

Schedule to this notification with

addition of capacity beyond the limits

specified for the concerned sector in the

said Schedule, subject to conditions and

procedure provided in the sub-paragraph

(ii) of paragraph 7.”

14.2 Therefore, without prior EC, construction of new

projects or activities, expansion or modernisation of

existing projects or activities listed in the Schedule

entailing capacity addition with change in process or

Writ Petition (C) No. 1394 of 2023, etc. Page 14 of 41

technology, cannot be undertaken. Entire procedure for

grant of prior EC is laid down in the EIA notification.

LEGALITY OF THE 2017 NOTIFICATION

15.The 2017 notification refers to the OMs dated 12

th

December 2012 and 27

th

June 2013 by which a process

was sought to be established for grant of EC in the cases

of violation of the EIA notification. It also refers to the

judgment of the High Court of Jharkhand holding these

two OMs as illegal. The same OMs were also quashed by

the NGT as mentioned in the said notification. There are

three recitals in the said notification which are relevant.

Recital Nos.9 to 11 read thus:

“9. And whereas, the Ministry of

Environment, Forest and Climate Change

and State Environment Impact

Assessment Authorities have been

receiving certain proposals under the

Environment Impact Assessment

Notification, 2006 for grant of Terms of

References and Environmental Clearance

for projects which have started the work

on site, expanded the production beyond

the limit of environmental clearance or

changed the product mix without

obtaining prior environmental clearance;

10. Whereas, the Ministry of

Environment, Forest and Climate

Change deems it necessary for the

purpose of protecting and improving

Writ Petition (C) No. 1394 of 2023, etc. Page 15 of 41

the quality of the environment and

abating environmental pollution that

all entities not complying with

environmental regulation under

Environment Impact Assessment

Notification, 2006 be brought under

compliance with in the environmental

laws in expedient manner;

11. And whereas, the Ministry of

Environment, Forest and Climate Change

deems 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 will

be more damaging to the environment

and in furtherance of this objective, the

Government of India deems it essential to

establish a process for appraisal of such

cases of violation for prescribing

adequate environmental safeguards to

entities and the process should be such

that it deters violation of provisions of

Environment Impact Assessment

Notification, 2006 and the pecuniary

benefit of violation and damage to

environment is adequately compensated

for;”

15.1Thus, what was sought to be done was to protect

the project proponents who committed gross illegality by

commencing construction or commencing operation or

process without obtaining prior EC as provided in the

Writ Petition (C) No. 1394 of 2023, etc. Page 16 of 41

EIA notification. The 2017 notification was a one-time

measure. Moreover, this Court in the case of Common

Cause v Union of India & Ors.

2

, held in no uncertain

terms that the concept of ex post facto or retrospective EC

is completely alien to environmental jurisprudence

including the EIA notification. The decision in the case of

Common Cause

2

was delivered on 2

nd

August 2017.

Notwithstanding the clear declaration of law which was

made on 2

nd

August 2017, the Central Government did

not withdraw the 2017 notification.

16.We may note here that this is not the first time that

the concept of prior EC was brought into force. For this

purpose, useful reference can be made to a decision of

this Court in the case of Alembic Pharmaceuticals v.

Rohit Prajapati

3

. It records that there was a notification

of 27

th

January 1994 mandating prior EC for setting up

and expansion of industrial projects falling within thirty

categories. The issue before this Court was about the

legality and validity of the circular dated 14

th

May 2002,

which permitted obtaining of ex post facto EC. This Court

specifically dealt with the challenge to the circular dated

14

th

May 2002. In paragraph 12, this Court noted the

issue to be decided:

“12. The issue to be adjudicated is whether

in view of the requirement of a prior EC

2 2017 (9) SCC 499

3 2020 (17) SCC 157

Writ Petition (C) No. 1394 of 2023, etc. Page 17 of 41

under the EIA Notification of 1994, a

provision for an ex post facto EC to

industrial units could be validly made by

means of the Circular dated 14-5-2002.”

16.1Thereafter, this Court considered Section 3(1) of the

1986 Act. In paragraph 21 this Court held thus:

“21. The omission in the appeal to make

any attempt to sustain the Circular dated

14-5-2002 with reference to the provisions

of Section 3 of the Environment (Protection)

Act, 1986 is significant. For an action of the

Central Government to be treated as a

measure referable to Section 3 it must

satisfy the statutory requirement of being

necessary or expedient “for the purpose of

protecting and improving the quality of the

environment and preventing, controlling and

abating environment pollution”. The

Circular dated 14-5-2002 in fact does quite

the contrary. It purported to allow an

extension of time for industrial units to

comply with the requirement of an EC. The

EIA Notification dated 27-1-1994 mandated

that an EC has to be obtained before

embarking on a new project or expanding or

modernising an existing one. The EIA

Notification of 1994 has been issued under

the provisions of the Environment

(Protection) Act, 1986 and the Environment

Protection Rules, 1986, with the object of

imposing restrictions and prohibitions on

setting up of new projects or expansion or

modernisation of existing project. The

measures are based on the precautionary

principle and aim to protect the interests of

Writ Petition (C) No. 1394 of 2023, etc. Page 18 of 41

the environment. The Circular dated 14-5-

2002 allowed defaulting industrial units

which had commenced activities without an

EC to cure the default by an ex post facto

clearance. Being an administrative decision,

it is beyond the scope of Section 3 and

cannot be said to be a measure for the

purpose of protecting and improving the

quality of the environment. The circular

notes that there were defaulting units which

had failed to comply with the requirement of

obtaining an EC as mandated. The circular

provided for an extension of time and

inexplicably introduced the notion of an ex

post facto clearance. In effect, it impacted

the obligation of the industrial units to be in

compliance with the law. The concept of ex

post facto clearance is fundamentally at

odds with the EIA Notification dated 27-

1-1994. The EIA Notification of 1994

contained a stipulation that any

expansion or modernisation of an activity

or setting up of a new project listed in

Schedule I “shall not be undertaken in

any part of India unless it has been

accorded environmental clearance”. The

language of the notification is as clear as

it can be to indicate that the requirement

is of a prior EC. A mandatory provision

requires complete compliance. The words

“shall not be undertaken” read in

conjunction with the expression “unless”

can only have one meaning : before

undertaking a new project or expanding

or modernising an existing one, an EC

must be obtained. When the EIA

Notification of 1994 mandates a prior EC, it

Writ Petition (C) No. 1394 of 2023, etc. Page 19 of 41

proscribes a post activity approval or an ex

post facto permission. What is sought to be

achieved by the administrative Circular

dated 14-5-2002 is contrary to the statutory

Notification dated 27-1-1994. The Circular

dated 14-5-2002 does not stipulate how the

detrimental effects on the environment

would be taken care of if the project

proponent is granted an ex post facto EC.

The EIA Notification of 1994 mandates a

prior environmental clearance. The circular

substantially amends or alters the

application of the EIA Notification of 1994.

The mandate of not commencing a new

project or expanding or modernising an

existing one unless an environmental

clearance has been obtained stands diluted

and is rendered ineffective by the issuance

of the administrative Circular dated 14-5-

2002. This discussion leads us to the

conclusion that the administrative circular

is not a measure protected by Section 3.

Hence there was no jurisdictional bar on

NGT to enquire into its legitimacy or vires.

Moreover, the administrative circular is

contrary to the EIA Notification 1994 which

has a statutory character. The circular is

unsustainable in law.”

(emphasis added)

16.2Ultimately, in paragraph 23, this Court held thus:

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

27-1-1994. It is, as the judgment

Writ Petition (C) No. 1394 of 2023, etc. Page 20 of 41

in Common Cause [Common

Cause v. Union of India, (2017) 9 SCC

499] 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.”

(emphasis added)

Writ Petition (C) No. 1394 of 2023, etc. Page 21 of 41

16.3 In fact, as noted in paragraph 22.1, the word ‘prior’

was not used in the EIA notification dated 27

th

January

1994. However, the words ‘shall not be undertaken’ were

used. In the 2006 EIA notification, the word ‘prior’

appears at multiple places.

17.The issue of ex post facto EC was dealt with in the

case of Common Cause

2

, In paragraph 108, a

submission was recorded that the possibility of getting ex

post facto EC was a signal to the mining leaseholders that

obtaining an EC was not mandatory or that if it was not

obtained, the default was retrospectively condonable. In

paragraph 125, this Court held thus:

“125. We are not in agreement with the

learned counsel for the mining leaseholders.

There is no doubt that the grant of an EC

cannot be taken as a mechanical exercise.

It can only be granted after due diligence

and reasonable care since damage to the

environment can have a long-term

impact. EIA 1994 is therefore very clear

that if expansion or modernisation of any

mining activity exceeds the existing

pollution load, a prior EC is necessary

and as already held by this Court in M.C.

Mehta [M.C. Mehta v. Union of India ,

(2004) 12 SCC 118] even for the renewal

of a mining lease where there is no

expansion or modernisation of any

activity, a prior EC is necessary. Such

importance having been given to an EC,

the grant of an ex post facto

Writ Petition (C) No. 1394 of 2023, etc. Page 22 of 41

environmental clearance would be

detrimental to the environment and

could lead to irreparable degradation of

the environment. The concept of an ex

post facto or a retrospective EC is

completely alien to environmental

jurisprudence including EIA 1994 and

EIA 2006. We make it clear that an EC will

come into force not earlier than the date of

its grant.”

(emphasis added)

18.Therefore, there is already a concluded finding of

this Court that the concept of ex post facto or

retrospective EC is completely alien to environmental

jurisprudence and the EIA notification. This view was

reiterated by this Court in the case of Electrosteel Steels

Ltd. v. Union of India and Ors.

4

,. In paragraph 72, this

Court held thus:

“72. 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

4 (2023) 6 SCC 615

Writ Petition (C) No. 1394 of 2023, etc. Page 23 of 41

be allowed to operate unchecked and

degrade the environment.”

(emphasis added)

18.1In this case, as well as in the case of Alembic

Pharmaceuticals

3

, this Court exercised its jurisdiction

under Article 142 of the Constitution and permitted ex

post facto EC in particular cases considering the peculiar

factual situation.

19.It is in this context that the legality and validity of

the 2017 notification will have to be tested. Interestingly,

in paragraph 10 of the notification, it is recorded that the

MoEFCC deems it necessary for the purpose of protecting

and improving the quality of environment and abating

environmental pollution that all the entities not

complying with the environmental regulation under EIA

notification be brought under compliance within the

environmental laws in an expeditious manner. The object

of protecting and improving the environment and

preventing and abating environmental pollution was

achieved by the EIA notification. The object of the 2017

notification appears to be to protect the industries and

entities which violated the EIA notification. In fact,

paragraph 14 of the 2017 notification is material which

reads thus:

“14. The projects or activities which are in

violation as on date of this notification only

will be eligible to apply for environmental

Writ Petition (C) No. 1394 of 2023, etc. Page 24 of 41

clearance under this notification and the

project proponents can apply for

environmental clearance under this

notification only within six months from the

date of this notification.”

20.Moreover, the 2017 notification is completely in

violation of the law laid down by this court in the case of

Common Cause

2

and Alembic Pharmaceuticals

3

. From

the recitals of the 2017 notification, it is apparent that it

was a one-time measure to protect those who were in

violation as on the date of the 2017 notification. In view

of the settled law, even a ‘one-time measure’ or ‘one-time

relaxation’ was illegal. The 2021 OM encourages the

entities who contributed to pollution by not obtaining

prior EC. Whenever EC is granted, it is always

conditional. Certain conditions are imposed to abate or

reduce the pollution. Such one-time measures add to air

and/or water pollution. Such measures infringe the right

to live in a pollution free environment guaranteed by

Article 21. Thus, the 2017 notification was completely

illegal.

21.The Division bench of Madras High Court by

judgment dated 13

th

October 2017, in the case of

Puducherry Environment Protection Association

1

dealt with the issue regarding the legality of the 2017

notification which was subject matter of challenge in a

Public Interest Litigation. A very specific submission was

Writ Petition (C) No. 1394 of 2023, etc. Page 25 of 41

made before the Madras High Court on behalf of the

Central Government by the learned Additional Solicitor

General, which is recorded in paragraph 4(i) of the

judgment. Relevant portion of paragraph 4(i) reads thus:

“4(i)With regard to precautionary

principle, faced with the situation that ex

post facto clearance and regularization dates

have been repeatedly extended time and

again by series of notifications, learned

Additional Solicitor General at the bar, on

instructions, submits that this impugned

notification shall clearly and certainly be

only a one time measure. We record this

submission also.

………………………………………………………”

(emphasis added)

21.1This statement was treated as an undertaking of the

Central Government, which is clear from paragraph 4(n)

of the said judgment:

“4(n)We are convinced that paragraphs

3,4 and 5 of the impugned notification

alluded to supra coupled with the two

undertakings made on instructions by

learned Additional Solicitor General that (a)

public hearing can be read into paragraph 5

of the impugned notification and (b) this

shall certainly and clearly be a one time

measure, this writ petition can be closed

and disposed of recording the above

submissions. We do so.”

(emphasis added)

Writ Petition (C) No. 1394 of 2023, etc. Page 26 of 41

21.2It is in view of this undertaking that the High Court

did not interfere. The Central Government is bound by

this undertaking. It is the duty of the Central

Government to comply with the undertaking in its true

letter and spirit.

22.The period provided in the 2017 notification to

apply for ex-post facto EC ended on 13

th

September 2017.

In the case of Appaswamy Real Estates Limited v.

Puducherry Environment Protection Association

5

, the

request of the MoEFCC for extending the time provided in

the 2017 notification was accepted. As a result, the OM

dated 16

th

March 2018 was issued which permitted the

project proponents to apply under the 2017 notification

within thirty days from the date of the High Court order.

What is pertinent to note is that notwithstanding the

grant of extension of time to apply, there was no

modification made to paragraph 14 of the 2017

notification which clarified that it is applicable only to

those projects and activities which were in violation on

the date of the said notification. Therefore, any project or

activity or process which required EC under the EIA

notification commenced after 14

th

March 2017 was not

protected by the 2017 notification.

23.Apart from the fact that the very concept of grant of

ex-post facto EC is illegal, it is not possible to understand

5 2018 SCC OnLine Mad 1283

Writ Petition (C) No. 1394 of 2023, etc. Page 27 of 41

why the Central Government made efforts to protect

those who committed illegality by not obtaining prior EC

in terms of the EIA notification. As the EIA notification

was eleven years old when the 2017 notification was

issued, there was no equity in favour of those who

committed such gross illegality of not obtaining prior EC.

The persons who acted without prior EC were not

illiterate persons. They were companies, real estate

developers, public sector undertakings, mining

industries, etc. They were the persons who knowingly

committed illegality. We, therefore, make it clear that

hereafter, the Central Government shall not come out

with a new version of the 2017 notification which

provides for the grant of ex-post facto EC in any manner.

LEGALITY AND VALIDITY OF THE 2021 OM

SUBMISSIONS

24.The learned senior counsel appearing for the

Petitioner submitted that post a series of judgments of

this Court in Alembic

3

and Common Cause

2

, it is not

permissible to grant ex post facto EC. He further submits

that the 2021 OM is in violation of the 1986 Act and the

EIA notification. He submits that EC must be prior and

cannot be granted ex post facto. While the 2021 OM does

not expressly extend the timeline under the 2017

notification or mention ex post facto, the 2021 OM and its

Writ Petition (C) No. 1394 of 2023, etc. Page 28 of 41

application has effectively allowed grant of ex post facto

EC.

25.The main submission of the learned Additional

Solicitor General is that the 2021 OM does not seek to

grant ex-post facto EC. It is only an SOP. The learned

ASG invited our attention to the contents of the SOP. Her

submission is that it provides for the demolition of

projects not allowable or permissible for want of EC. It

also provides for the closure of projects

allowable/permissible, if prior EC has not been taken as

per the EIA notification. She submitted that even if EC is

granted, it will be effective from the date of the issue, and

therefore, it is not ex post facto. She submitted that before

such EC is granted, the project proponent will have to

pay certain amounts as provided therein based on

Polluter Pays Principle. Moreover, the project proponents

will have to undertake activities relating to remedial plan

and community accommodation plan. She also pointed

out that the projects which are not allowable or

permissible, shall be demolished. She also pointed out

provisions regarding penalty, project proponents

furnishing bank guarantee, etc. Thus, in short, her

submission is that the object of the 2021 OM is to protect

those projects and industries which could have been

granted an EC under EIA notification before the date of

commencement of activities, but proceeded to commence

Writ Petition (C) No. 1394 of 2023, etc. Page 29 of 41

activities without EC. Her submission is that this

measure has been taken to ensure that the huge

spending on constructions is not lost and wasted.

OUR VIEW

26.The basic submission by learned ASG is based on a

premise that what is provided under the 2021 OM is not

grant of ex-post facto EC. The relevant part of the 2021

OM is in paragraph 10 and 11, which read thus:

“10.Standard Operating Procedure-Guiding

Principles:

i. Without prejudice to any other

consequences, action has to be initiated

under section 15 read with section 19 of

The Environment (Protection) Act, 1986

against all violations.

ii. Projects not allowable/permissible, for

grant of EC, as per extant regulations: To be

demolished.

iii. Projects allowable/permissible, if prior EC

had been taken as per extant regulations: To

be closed until EC is granted (if no prior

EC has been taken) or to revert to

permitted production level (in case prior

EC has been granted).

iv. Polluter pays: Violators to pay for violation

period proportionate to the scale of project

and extent of commercial transaction.

v. Setting up a mechanism for reporting of

violation to the regulatory authority(ies).

11. SOP for dealing with the violation

cases:

Writ Petition (C) No. 1394 of 2023, etc. Page 30 of 41

Step 1: Closure or Revision

Sl no.Status of

EC

Actions

1 If no prior EC has

been taken

Order to close its

operation

2 If prior EC is

available for

existing/old unit

Order to revert the

activity /production

to permissible

limits.

3 If prior EC was

not required for

earlier production

level but is now

required

Restrict the

activity /production

to the extent to

which prior EC was

not required

Step 2: Action under Environment

(Projection) Act, 1986

Action under section 15 read with section 19

of the Environment (Protection) Act, 1986

shall be initiated against the violators.

Step: 3: Appraisal under EIA Notification,

2006

The permissibility of the project shall be

examined from the perspective of whether

such activity/project was at all eligible for the

grant of prior EC.

A. If not permissible:

i. The project shall be ordered for the

demolition/closure after issuing show

cause notice and providing an opportunity

of hearing.

Ex. If a red industry is functioning in a CRZ-I

area which means that the activity was, in the

first place, not permitted at the time of

Writ Petition (C) No. 1394 of 2023, etc. Page 31 of 41

commencement of project. Therefore, the

activity is not permissible and therefore it shall

be closed & demolished.

ii. Respective regulatory authorities shall

issue directions under section 5 of the

Environment (Protection) Act, 1986 for such

closure & demolition of the project/activity.

B. If permissible:

i. As per extant regulations at the time of

scoping, if it is viewed that the project activity

is otherwise permissible, Terms of Reference

(TOR) shall be issued with directions to

complete the impact assessment studies &

submit Environmental Impact Assessment

(EIA) report & Environmental Management

Plan (EMP) in a time bound manner.

ii. Such cases of violation shall be subject to

appropriate

(a) Damage Assessment

(b) Remedial Plan and

(c) Community Augmentation Plan by

the Central Level Sectoral Expert Appraisal

Committees or State/Union Territory Level

Expert Appraisal Committees, as the case

may be.

iii. The Competent Authority shall issue

directions to the project proponent, under

section 5 of the Environment (Protection) Act,

1986 on case to case basis mandating

payment of such amount (as may be

determined based on Polluter Pays principle)

and undertaking activities relating to

Remedial Plan and Community Augmentation

Plan (to restore environmental damage

caused including its social aspects).

Writ Petition (C) No. 1394 of 2023, etc. Page 32 of 41

iv. Upon submission of the EIA & EMP report,

the project shall be appraised by the Central

Sectoral Expert Appraisal Committees or the

State/Union Territory Level Expert Appraisal

Committees, as the case may be, as if it was a

new proposal. If, on examination of the

EIA/EMP report, the project is considered

permissible for operation as per extant

regulations, the requisite Environmental

Clearance shall be issued which shall be

effective from the date of issue.

v. However, during appraisal after

examination if it is found that even though

the project may be permissible but not

environmentally sustainable in its present

form/configuration/features then the

project shall be directed to be modified so

that the project would be environmentally

sustainable.

vi. If, however, it is not considered

appropriate to issue EC, the project shall be

directed to be demolished/ closed. If such

proposal is a case of expansion, the project

shall be directed to revert back to the

extent of activity for which EC had been

granted earlier or to revert back to the

extent of activity for which EC was not

required (as the case may be).

vii. Central Sectoral Expert Appraisal

Committees or the State/Union Territory

Level Expert Appraisal Committees, as the

case may be, may insist upon public hearing

to be conducted for such categories of

projects for which the EIA Notification 2006,

as amended from time to time, requires the

public hearing to be conducted.

viii. The project proponent will be required to

submit a bank guarantee equivalent to the

Writ Petition (C) No. 1394 of 2023, etc. Page 33 of 41

amount of Remediation Plan and Natural &

Community Resource Augmentation Plan

with Central / the State Pollution Control

Board (depending on whether it is

appraised at Ministry or by SEIAA). The

quantification of such liability will be

recommended by Expert Appraisal Committee

and finalized by Regulatory Authority. The

bank guarantee shall be deposited prior to

the grant of environmental clearance and will

be released after successful

implementation of the Remediation Plan

and Natural & Community Resource

Augmentation Plan.”

27.In short, it provides for grant of EC to category of

‘allowable/permissible’ projects. We must remember that

the 2021 OM is applicable even to the completed projects.

The 2021 OM says that grant of EC to such projects shall

be effective from the date of issue. If the project

proponent goes ahead with construction which requires

EC under the EIA notification, it will amount to violation

of the provisions of 1986 Act and 1986 Rules. It will

attract penalty under Section 15 of the 1986 Act. Perusal

of the provisions of Section 15 shows that even if the

penalty is paid by the project proponent, it will not

regularise the project. Therefore, even after the payment

of penalty, if the project is under construction, the same

has to be stopped and demolished and even if operation

has already commenced, the same has to be stopped and

demolished. Therefore, the construction work has to be

demolished.

Writ Petition (C) No. 1394 of 2023, etc. Page 34 of 41

28.Now, we will consider what is the meaning of “ex

post facto”. Various dictionary meanings can be

summarised as under:

a)Having retrospective effect or force;

b)From a thing done afterwards;

c)Retroactive or affecting something that has already

happened.

29.Now, we will take a case of ex post facto EC provided

under the 2017 notification. The effect of grant of ex post

facto clearance is that if without obtaining EC,

construction is in progress, the same is allowed to

continue. If the construction is complete and operation

and processes are going on, the same can go on after ex

post facto EC is granted. Effect of grant of EC under

clause (11) of 2021 OM will be grant of permission to

complete the construction of the project, though

construction had commenced without prior EC. Where

the construction is already complete which is being used

for processes etc., by grant of EC, the process/activities

can continue. Thus, in effect, the EC granted under

clause (11) of 2021 OM regularises something which was

illegal with retrospective effect. In effect, the EC granted

under clause (11) of 2021 OM will regularise the illegality

done by commencing the construction or commencing

the project without prior EC. Therefore, in substance,

what is provided is grant of ex post facto EC. In other

Writ Petition (C) No. 1394 of 2023, etc. Page 35 of 41

words what is granted is EC with retrospective effect as it

regularises illegality committed earlier. The grant of EC

under the 2021 OM, no doubt, is subject to making

payment of compensation determined based on Polluter

Pays Principle and undertaking activities relating to

remedial plan. Once there is a violation of the EIA

notification, the project proponent has to compensate

following the Polluter Pays Principle. Even if, EC is not

granted to him he has to pay for remedial plan to remedy

the damage done to the environment. He has to also pay

the penalty under Section 15 of the 1986 Act. Therefore,

what is done by the 2021 OM is something which was

completely prohibited by this Court in the cases of

Common Cause

2

and Alembic Pharmaceuticals

3

. It is

an attempt to bring in an ex-post facto or retrospective

regime by craftily drafting the SOP. The grant of EC

under the 2021 OM in substance and in effect amounts

to ex post facto grant of EC. The Court must come down

very heavily on the attempt of the Central Government to

do something which is completely prohibited under the

law. Cleverly, the words ex post facto have not been used,

but without using those words, there is a provision to

effectively grant ex post facto EC. The 2021 OM has been

issued in violation of the decisions of this Court in the

cases of Common Cause

2

and Alembic

Pharmaceuticals

3

. Therefore, we have no manner of

Writ Petition (C) No. 1394 of 2023, etc. Page 36 of 41

doubt that the 2021 OM which permits grant of EC is

completely arbitrary and illegal. Moreover, the 2021 OM

does not refer to exercise of any power under the 1986

Act or the 1986 Rules.

30.There is one more aspect which is required to be

noted. As per paragraph 14 of the 2017 notification,

provision for grant of ex post facto EC was made only in

relation to projects or activities which were in violation as

of 14

th

March 2017. Therefore, grant of ex post facto

clearance was not permitted under 2017 notification for

the projects and activities which were commenced or

continued after 14

th

March 2017. The window which was

initially for a period of six months was eventually

extended till completion of 30 days from 14

th

March 2018.

Therefore, the 2021 OM is brought in to do something

which was not permissible under the 2017 notification,

the law laid down by this Court, and the solemn

undertaking given by the Central Government to the

Madras High Court. We must deprecate such effort on the

part of the Central Government.

31.The EIA notification is of 14

th

September 2006.

When the 2021 OM was issued, it was nearly 15 years

old. Therefore, all project proponents were fully aware of

the stringent requirements under the EIA notification.

The 2021 OM seeks to protect the violations of the EIA

notification which have taken place or continue to take

Writ Petition (C) No. 1394 of 2023, etc. Page 37 of 41

place 15 years after the EIA notification came into force.

Thus, the 2021 OM seeks to protect violators who have

acted with full knowledge of consequences of violating the

EIA notification. Those who violate the law regarding

obtaining prior EC are not only committing gross

illegality, but they are acting against the society at large.

The violation of the condition of obtaining prior EC must

be dealt with heavy hands. In environmental matters,

the Courts must take a very strict view of the violations

of the laws relating to the environment. It is the duty of

the Constitutional Courts to do so.

32.Under Article 21 of the Constitution of India, the

right to live in a pollution free environment is guaranteed.

In fact, the 1986 Act has been enacted to give effect to

this fundamental right. In 1977, fundamental duties of

all citizens were incorporated in the Constitution which

enjoined every citizen of India to protect and improve the

environment as provided in clause (g) of Article 51A.

Therefore, even the Central Government has a duty to

protect and improve the natural environment.

33.Today, in the year 2025, we have been experiencing

the drastic consequences of large-scale destruction of

environment on human lives in the capital city of our

country and in many other cities. At least for a span of

two months every year, the residents of Delhi suffocate

due to air pollution. The AQI level is either dangerous or

Writ Petition (C) No. 1394 of 2023, etc. Page 38 of 41

very dangerous. They suffer in their health. The other

leading cities are not far behind. The air and water

pollution in the cities is ever increasing. Therefore,

coming out with measures such as the 2021 OM is

violative of fundamental rights of all persons guaranteed

under Article 21 to live in a pollution free environment. It

also infringes the right to health guaranteed under

Article 21 of the Constitution.

34.The 2021 OM talks about the concept of

development. Can there be development at the cost of

environment? Conservation of environment and its

improvement is an essential part of the concept of

development. Therefore, going out of the way by issuing

such OMs to protect those who have caused harm to the

environment has to be deprecated by the Courts which

are under a constitutional and statutory mandate to

uphold the fundamental right under Article 21 and to

protect the environment. In fact, the Courts should come

down heavily on such attempts. As stated earlier, the

2021 OM deals with project proponents who were fully

aware of the EIA notification and who have taken

conscious risk to flout the EIA notification and go ahead

with the construction/continuation/expansion of

projects. They have shown scant respect to the law and

their duty to protect the environment. Apart from

violation of Article 21, such action is completely arbitrary

Writ Petition (C) No. 1394 of 2023, etc. Page 39 of 41

which is violative of Article 14 of the Constitution of India

besides being violative of the 1986 Act and the EIA

notification.

35.We are, however, conscious of the fact that ex post

facto EC may have been granted in certain cases both

under the 2017 notification and the 2021 OM. ECs

already granted under 2017 notification and the 2021

OM, at this stage, should not be disturbed.

36.Hence, we pass the following order:

a)We hold that the 2017 notification and the 2021

OM as well as all

circulars/orders/OMs/notifications issued for

giving effect to these notifications are illegal and

are hereby struck down;

b)We restrain the Central Government from issuing

circulars/orders/OMs/notifications providing for

grant of ex post facto EC in any form or manner or

for regularising the acts done in contravention of

the EIA notification;

c)We clarify that the ECs already granted till date

under the 2017 notification and the 2021 OM

shall, however, remain unaffected.

Writ Petition (C) No. 1394 of 2023, etc. Page 40 of 41

37.The writ petitions and civil appeals are accordingly

allowed on the above terms.

………………………..J.

(Abhay S. Oka)

………………………..J.

(Ujjal Bhuyan)

New Delhi;

May 16, 2025

Writ Petition (C) No. 1394 of 2023, etc. Page 41 of 41