SC reserves verdict on pleas seeking review of May 16 verdict on grant of EC to projects

New Delhi, Oct 9 (PTI) The Supreme Court on Thursday reserved its verdict on as many as 40 petitions seeking modifications and a review of its May 16 verdict that had struck down the Centre's decision to grant retrospective clearances to projects found in violation of environmental norms.

The May 16 verdict by a bench of Justice A S Oka, since retired, and Justice Ujjal Bhuyan had barred the Ministry of Environment Forests and Climate Change (MoEFCC) and the authorities concerned from granting retrospective environmental clearances to projects which are found in violation of environmental norms.

Justice Oka, who authored the judgement under review, had set aside the post-facto environmental clearance (EC) granted to firms, saying the right to live in a pollution free atmosphere was a part of the fundamental right.

A bench of Chief Justice B R Gavai and justices Bhuyan and K Vinod Chandran heard submissions from several senior advocates, including Kapil Sibal, Mukul Rohatgi, and Solicitor General Tushar Mehta, appearing for various industrial and infrastructural entities as well as government bodies, in favour of the review or modification of the impugned judgement.

While senior advocates including Gopal Sankaranarayanan, Sanjay Parikh and Anand Grover vehemently opposed any move to review the judgement saying that the court should not encourage the "lawlessness".

"How can a violator be allowed to get the post-facto EC for the projects which are in violation of green norms," one of the senior lawyers told the bench.

The CJI asked about what about AIIMS and cancer hospitals, do you want them to be demolished.

Opening the arguments, Sibal said the court's earlier judgement suffered from "an apparent error" as it overlooked the legal sources of power under which the Office Memorandum were issued, namely, Sections 3 and 5 of the Environment (Protection) Act, 1986 and directions of the National Green Tribunal.

"The Office Memorandum was passed in pursuance of the NGT's order. There are two sources of power referred to in it. This was not pointed out to the earlier Bench," Sibal said, adding that the NGT had itself permitted regularisation of permissible projects while directing demolition of impermissible ones.

The CJI, however, observed, "It appears from the NGT order that despite violations, the violators continued with impunity. That's why these directions were there." Sibal argued that the intent of the office memorandums was not to condone violations but to impose proportional penalties and ensure environmental compliance.

"If the project is impermissible, it is to be closed. If it is permissible but not environmentally sustainable, it can still be shut down. This is the principle of proportionality," he said.

Acknowledging the seriousness of environmental degradation, Sibal remarked, "Environment is a very big issue in the country. It is creating havoc. As an officer of the court, I must say this. But there cannot be a finding that the source of power was absent." At one point, the Chief Justice observed wryly, "You break the law and then get it regularised." To this, Sibal replied, "I am a sufferer myself. Look at Shimla... I have lived there for eight years." The solicitor general, appearing for SAIL and a government entity constructing an AIIMS hospital and medical college, said that the judgement under review ignored binding precedents and notifications that validated the Centre’s approach.

"There is an error apparent on the face of the record," Mehta argued.

"For instance, SAIL has been operating mines since the 1990s, when environmental clearance was not required. In 2017, this court held that even mining required clearance. We immediately applied, paid penalties, obtained recommendations from the Central Expert Appraisal Committee, but before clearance could be granted, the judgement under review came," he said.

"The earlier Bench did not consider the 2017 notification and the D. Swamy judgement that upheld its validity. This omission constitutes an error apparent," Mehta said.

He added that environmental regulation should embody the principle of proportionality rather than absolute prohibition.

"The court has to see whether public interest would be served by demolishing everything or by imposing penalties. The 2017 and 2021 notifications sought to balance equity with environmental compliance," Mehta submitted.

At one point, the CJI remarked, "We have developed a habit of not relying on lawyers in the Supreme Court. Lines are read out of context, paragraphs are read out of context," in reference to misread precedents.

The CJI, however, clarified the bench was not examining the merits of the OMs at this stage but only determining whether the May 16 judgement required review.

"We are not considering the OMs on merits. We are just seeing whether the judgement needs review or not," the Chief Justice said. The review petitions are crucial for several ongoing and completed projects, including infrastructure, mining, and industrial undertakings, as they risk closure or demolitions due to the May 16 verdict.

The impugned verdict had said the ex-post facto environmental clearances granted in certain cases both under the 2017 notification and the 2021 office memorandum (OM), at the present stage, wouldn't be disturbed.

The bench, therefore, declared the 2021 office memorandum (OM) and related circulars "arbitrary, illegal, and contrary to the Environment (Protection) Act, 1986 and the Environmental Impact Assessment (EIA) Notification, 2006". PTI SJK ZMN