Summary
The appellant sought closure of a Common Bio-Medical Waste Treatment Facility in Mysore district, which had been set up and was operating under consents granted by the Karnataka State Pollution Control Board, because it had no prior Environmental Clearance under the 2006 EIA Notification as amended on 17 April 2015. The National Green Tribunal refused to order closure. The Supreme Court dismissed the appeal under Section 22 of the NGT Act. It held that the EP Act does not prohibit ex post facto clearance. Such clearance should not be granted routinely, but it cannot be refused with pedantic rigidity. The 2017 notification S.O. 804(E) and the 7 July 2021 Standard Operating Procedure are valid. Alembic Pharmaceuticals was distinguished. Closing a facility that prevents pollution, merely for want of prior clearance, would be against the public interest.
Issues
- Whether a Common Bio-Medical Waste Treatment Facility operating with valid consent to operate must be closed for want of prior Environmental Clearance
- Whether ex post facto Environmental Clearance is impermissible under the Environment (Protection) Act, 1986
- Whether the Ministry's 2017 notification and the 7 July 2021 Standard Operating Procedure on violation cases are invalid in the light of Alembic Pharmaceuticals
Provisions considered
- Section 3(1) and 3(2)(v), read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986, Environment (Protection) Act, 1986Notification S.O. 804(E) of 14 March 2017, which provides for appraisal and grant of clearance in violation cases, was held to be a valid statutory notification issued under these powers. The Act does not prohibit ex post facto clearance granted in strict compliance with the rules and notifications. (¶¶ 21, 22, 41, 48)
- Section 21, General Clauses Act, 1897The authority competent to issue the 1994 and 2006 EIA notifications may amend, vary or rescind them in like manner, as often as the exigency requires. (¶¶ 23, 36)
- Section 22, National Green Tribunal Act, 2010The appeal against the Tribunal's order was barred by delay and raised no substantial question of law. (¶¶ 1, 26, 50)
Held
- The Environment (Protection) Act does not prohibit ex post facto Environmental Clearance. It should not ordinarily be granted, and certainly not for the asking, but it cannot be declined with pedantic rigidity regardless of the consequences of stopping operations. It may be granted in exceptional cases, in strict conformity with the rules and notifications, where the unit complies or can be made to comply with environmental norms. A deviant unit can be made to pay heavy penalties and the cost of restoration on the polluter-pays principle. (¶¶ 40, 41, 46, 47, 48, 49)
- The 2017 notification is a valid statutory notification, and the Standard Operating Procedure of 7 July 2021 was issued pursuant to it. Alembic Pharmaceuticals concerned a 2002 administrative circular that contradicted the statutory 1994 notification and is distinguishable. The Madras High Court erred in staying the Standard Operating Procedure on the strength of that decision. (¶¶ 22, 31, 32, 37, 45)
- A judgment is not to be read like a statute. The observation that a 'one-time' relaxation was permissible does not mean relaxation cannot be made more than once. Where the power to amend or relax exists, it may be exercised as often as necessary, and a counsel's statement in court does not bar amendment made by the procedure prescribed by law. (¶¶ 35, 36)
- The Tribunal rightly held that a bio-medical waste facility operating with the requisite consent to operate could not be closed only for want of prior Environmental Clearance. Its operation serves to prevent pollution, and its closure on that ground alone would be against the public interest. The case was covered by Electrosteel Steels and Pahwa Plastics. (¶ 50)
Result
Appeal dismissed. The Tribunal's refusal to order closure was upheld; the appeal was also barred by delay and raised no substantial question of law.