Holding

The Supreme Court held that the NGT acted within its jurisdiction in granting a one‑year period to obtain environmental clearance, and the amendment to the EIA Notification rendered the closure notice untenable.

Summary

The project proponent obtained Consent to Establish and Consent to Operate for a cold‑rolled stainless steel unit in Gujarat, but the National Green Tribunal (NGT) was approached alleging violation of the 2006 Environment Impact Assessment (EIA) Notification which required prior environmental clearance (EC) for such secondary metallurgical units. The NGT, after a joint committee and Ministry affidavit, granted a one‑year grace period for the unit to obtain EC, a decision challenged on the ground of jurisdiction under Section 21 of the NGT Act. While the appeals were pending, the Central Government issued a notification on 20 July 2022 amending the EIA Notification, providing a one‑year window for units with existing CTE/CTO to apply for Terms of Reference and EC. The Supreme Court held that the NGT’s order was within its powers and, in view of the amendment, the closure notice issued by the Gujarat State Pollution Control Board could not be sustained. Consequently, the appeal by the petitioner was dismissed and the closure notice was quashed, disposing of both appeals.

Issues considered

The NGT’s jurisdiction under Section 21 of the National Green Tribunal Act to grant a time period for obtaining environmental clearance.
Whether the cold‑rolled steel unit required prior environmental clearance under the 2006 EIA Notification.
The validity of the closure notice issued by the Gujarat State Pollution Control Board after the amendment of the EIA Notification in 2022.
The correctness of the NGT’s order granting a one‑year grace period to the unit.

Legislation cited

Subjects

Environmental clearanceEIA Notification 2006National Green TribunalSection 21 NGT ActGrace periodClosure noticeAmendment 2022Cold rolled steelConsent to EstablishPollution Control Board

Judgment

282 [2022]
SUPREME COURT 17 S.C.R. 282
REPORTS [2022] 17 S.C.R.

A GAJUBHA JADEJA JESAR
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 3116 of 2020)
B AUGUST 10, 2022
[HEMANT GUPTA AND VIKRAM NATH, JJ.]
National Green Tribunal Act, 2010 – s. 21 – Jurisdiction of
Tribunal under – Permission granted by State Pollution Control
Board to Project Proponent, who had applied for consent to establish
C
Cold Rolled Coils of stainless steel – It was alleged that the project
proponent had set up the unit in violation of Environment Impact
Assessment (EIA) notification dated 14.09.2006 and prior
environmental clearance was required – Application filed before
the Tribunal – On basis of the recommendation of the Expert
D Appraisal Committee (EAC), Tribunal granted a period of at least
one year to operate for the purpose – Applicant challenged the
time granted by the Tribunal on the ground that the Tribunal has no
jurisdiction to grant period for obtaining Environmental Clearance
– The Project Proponent, aggrieved against the order passed by
the Tribunal, challenged the findings recorded that Environmental
E
Clearance is required – During pendency of the appeals before the
Supreme Court, the Project Proponent was served with the closure
notice by the State Pollution Control Board – Held: No error in the
order passed by the Tribunal – The order of the Tribunal is based
upon recommendation of the EAC which suggested that one year
F time should be granted to the industry to comply with the EIA
notification dated 14.9.2006 – In the instant case, in view of the
amendment in the EIA notification dated 20.7.2022, the unit has
time to seek Environmental Clearance in terms of the time line
mentioned in the notification – Therefore, the order of closure of
the unit cannot be sustained.
G
Disposing of the appeals, the Court
HELD: 1. No error in the order passed by the Tribunal.
The order of the Tribunal is based upon recommendation of the
EAC which suggested that one year time should be granted to
H the industry to comply with the EIA notification dated 14.9.2006.
282
GAJUBHA JADEJA JESAR v. UNION OF INDIA & ORS. 283

The stand of the Ministry as well as the Project Proponent is that A
there was ambiguity in the EIA notification 2006. 1689 units have
come up in the country on the basis of CTE and CTO regime. It
is not a case of ambiguous interpretation in respect of one or two
units but the entire country was having the same interpretation
that Re-Rolling Steel Plants do not require a prior Environmental B
Clearance. The ambiguity has been removed only on 20.7.2022
when the notification has been amended, as reproduced above.
Since there was ambiguity earlier, the Tribunal had granted time
to the Project Proponent to comply with the requirement of
Environmental Clearance. Direction of the Tribunal is, in fact,
C
arising out of scope of powers conferred on the Tribunal under
Section 21 of the NGT Act. [Paras 18 and 19][291-E-G; 292-A]
2. Out of 1689 units in the country, the applicant has chosen
the Project Proponent as it appears to be a motivated petition to
target the Project Proponent though the Cold Steel Rolling Mills D
in the country were operating under the same regime. Not only
the Project Proponent, but the 15 countries, also has suffered
immensely on account of closure of the unit which was export
oriented unit. It may be noticed that the Gujarat State Pollution
Control Board has chosen the Project Proponent to serve with a
E
closure notice on 25.6.2021. The unit is lying closed since then.
In view of the amendment in the EIA notification dated 20.7.2022,
the unit has time to seek Environmental Clearance in terms of
the time line mentioned in the notification. Therefore, the order
of closure of the unit cannot be sustained. [Para 24][296-D-F]
F
Municipal Corporation of Greater Mumbai v. Ankita
Sinha & Ors. 2021 SCC Online SC 897; Pahwa Plastics
Pvt. Ltd. & Anr. v. Dastak NGO & Ors 2022 SCC Online
SC 362 – relied on.
Common Cause v. Union of India & Ors (2017) 9 SCC G
499 : [2017] 13 SCR 361; Hanuman Laxman Aroskar
v. Union of India (2019) 15 SCC 401 : [2019] 5 SCR
916; Alembic Pharmaceuticals Limited v. Rohit Prajapati
& Ors (2020) 17 SCC 157 – referred to.
H
284 SUPREME COURT REPORTS [2022] 17 S.C.R.

A Case Law Reference
[2017] 13 SCR 361 referred to Para 21
[2019] 5 SCR 916 referred to Para 22
[2020] 17 SCC 157 referred to Para 23
B CIVIL APPELLATE JURISDICTION : Civil Appeal No.3116 of
2020.
From the Judgment and Order dated 12.02.2020 of the National
Green Tribunal, Western Zone Bench at Pune in Original Application
No.55 of 2019 (WZ).
C
With
Civil Appeal No.3576 of 2020.
Ms. Madhavi Divan, Ms. Aishwarya Bhati, ASGs, Shyam Divan,
Kavin Gulati, Ms. Anitha Shenoy, Sr. Advs., Kishore Kunal, Manish
D Rastogi, Ms. Ankita Prakash, Ms. Kanak Grover, Uday Aditya Banerjee,
Ms. Srishti Agnihotri, Ms. Sanjana Grace Thomas, Ms. Aarti Krupa
Kumar, Ms. Seema Bangani, Ms. Akanksha Kaul, Ayush Puri, Aman
Sahani, M. Singh, Gurmeet Singh Makker, Ms. Aastha Mehta, Ms.
Deepanwita Priyanka, Ms. Prerana Mohapatra, Ms. Nidhi Jaswal, Ms.
Archana Pathak Dave, Vatsal Joshi, Ms. Vishakha, Arvind Kumar
E Sharma, Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. This order shall dispose of Civil Appeal No. 3116 of 2020 arising
F out of an application filed by the appellant1 before the National Green
Tribunal2 and Civil Appeal No. 3576 of 2020 filed by the Project
Proponent, both arising out of the same order passed by the Tribunal on
12.2.2020.
2. The Project Proponent applied for Consent to Establish (CTE)
G Cold Rolled Coils of stainless steel on 20.1.2018, the permission of which
was granted by Gujarat State Pollution Control Board. After the unit
was erected, Project Proponent was granted permission to operate the
unit on 6.2.2020. It is noted that the Project Proponent has invested
1
For short, the ‘Applicant’
2
H For short, the ‘Tribunal’
GAJUBHA JADEJA JESAR v. UNION OF INDIA & ORS. 285
[HEMANT GUPTA, J.]

Rs.1100 crores for the development of infrastructure and had a turnover A
of approximately Rs.743 crores and paid Rs.286.17 crores as Goods
and Services Tax till the Financial Year 2020-21. The applicant also earned
US Dollars 15.52 million foreign exchange for the country.
3. An application was filed before the Tribunal on 20.7.2019 on
the ground that the Project Proponent has set up the unit in violation of B
Environment Impact Assessment (EIA) notification dated 14.9.2006, as
such plant would fall within category 3(a) i.e., secondary metallurgical
industry for which a prior environmental clearance is required. The
relevant extract from the EIA notification reads thus:
3(a) Metallurgica l a) Primary General Condition
industries metallurgical shall apply for C
(ferrous & non industry All Sponge iron
ferrous) projects manufacturing Note:
(i) The recycling
b) Sponge iron Sponge iron industrial units
manufacturing manufacturing covered under HSM
≥200 TPD <200 TPD Rules are
exempted.
c) Secondary Secondary D
metallurgical metallurgical (ii) In case of
processing processing secondary
industry All industry i) All metallurgical
toxic and toxic and heavy processing industrial
heavy metal metal producing unitsonly those
producing units units <20,000 projectsinvolving
≥ 20,000 tonnes/annum operationof furnaces
tonnes/annum ii) All other non- such as induction and E
- toxic secondary electric are
metallurgical furnace,
processing submerged are
industries furnace, cupola
>5000 and crucible
tonnes/annum furnace with
capacity more than
30,000 tonnes per F
annum (TPA) would

require environmental
clearance

(iii) Plant/units
other than power G
plants (given
against entry no. 1
(d) of the schedule),
based on municipal
solidwaste (non
hazardous) are
exempted).
H
286 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 4. The Tribunal set up a Joint Committee on 28.7.2019. The
Committee concluded that the applicability of the notification would be
determined by the Ministry of Environment, Forest and Climate Change3.
The Ministry filed an affidavit on 21.11.2019, on the basis of which the
Tribunal took a prima facie view that the industry requires an
environmental clearance and thus stayed all activities of the project as
B
the Ministry sought time to file an additional response. Later, an affidavit
was filed by the Ministry that a Group of Experts had been appointed on
the issue. After the said report, the Project Proponent filed an application
for modification of the order passed by the Tribunal on 21.11.2019 and
the stay was thereafter vacated on 16.1.2020.
C 5. The Expert Appraisal Committee4 in its meeting held on 23-
24.12.2019 concluded that grace period of one year could be granted
where the industry has been established after CTE/CTO. The Ministry
filed an affidavit accepting the recommendation No. 3(iii) of the EAC
recommending one year grace period for the industry. The relevant part
D of the recommendation is reproduced as under:
“i. Project activity of CSPL falls under Category B of Schedule
3(a) Metallurgical Industries (ferrous and non-ferrous) of EIA
Notification, 2006.
ii. The committee also noted that there are a few issues which
E may have diverse interpretations. The reports submitted by the
Committee formed by the Hon’ble NGT and the joint inspection
report by the Regional office of Bhopal and RO of GPCB for
Kutch have also left the final interpretation to the MoEF&CC. It
is also noted that the present unit has obtained CTE from GPCB
which is a Statutory authority. There may be other similarly placed
F cases in the country. This shows that there is a scope and need
for further clarification in the matter regarding certain issues so
that there is no subjective interpretation in future. These issues
are (1) definition of secondary metallurgy units for the purpose of
EIA process, (2) clarification about the types of furnaces under
applicability of MoEF&CC notification 2006 and (3) clarifying re
G
rolling vs. cold rolling in the context of Environment Clearance.
Therefore, for further smoothening the EC process for present
unit and proposals in future, the MoEF&CC may consider issuing
further clarifications.
3
For short, the ‘Ministry’
4
H For short, the ‘EAC’
GAJUBHA JADEJA JESAR v. UNION OF INDIA & ORS. 287
[HEMANT GUPTA, J.]

iii. In order to address to instant and similar cases where such re A
rolling/cold rolling units are established or operating with a CTE/
CTO from the concerned State Pollution Control Boards, the
Ministry may consider directing the State Pollution Control Boards
to get a list of all such cases and take further quick actions so that
they apply for EC and get covered by the EIA notification 2006.
B
Since, these units are established or operating under the CTEs/
CTOs obtained from a statutory authority i.e. the respective Stale
Pollution Control Boards, a period of one year may be allowed for
this recommended conversion to EC. This will also ensure that
the units remain in operation for the allowed period and closures,
unemployment and related social issues/unrests are avoided. C
During this period of one year, they will have to follow all the
conditions imposed under the CTE/CTO.”
6. It is on the basis of the said recommendation that the Tribunal
passed the order dated 12.2.2020 that in view of the large number of
such mills operating on the strength of CTE/CTO, opportunity should be D
provided to such units to fall within EC regime by granting a period of at
least one year to operate for the purpose.
7. The applicant challenged the time granted by the Tribunal on
the ground that the Tribunal has no jurisdiction to grant period for obtaining
Environmental Clearance as the EIA notification mandates a prior
Environmental Clearance. Since such consent was not obtained before E
the setting up of the industry, the time limit of one year is against the
mandate of the statute. It was further argued that under Section 21 of
the National Green Tribunal Act, 20105, the Tribunal has the jurisdiction
to set aside the Environmental Clearance but has no jurisdiction for the
grant of time for Environmental Clearance. F
8. The Project Proponent, aggrieved against the order passed by
the Tribunal, challenged the findings recorded that Environmental
Clearance is required. During the pendency of the appeal before this
Court, the Project Proponent was served with a closure notice on
25.6.2021 by the Gujarat State Pollution Control Board and the unit was
G
closed in terms of the said notice. This closure notice has been assailed
by way of I.A. No. 81563 of 2021.
9. While the appeals were pending before this Court, the
Government of India has published a notification on 20.7.2022 in terms
5
For short, the ‘NGT Act’ H
288 SUPREME COURT REPORTS [2022] 17 S.C.R.

A of Section 3 of the Environment (Protection) Act, 19866 to apply Terms
of Reference within one year followed by Environmental Clearance.
The notification reads thus:
“MINISTRY OF ENVIRONMENT, FOREST AND
CLIMATE CHANGE
B NOTIFICATION
New Delhi, the 20th July, 2022
S.O. 3250(E).—Whereas, the Hon’ble National Green
Tribunal vide its order, dated the 12th February, 2020, in Original
C Application No. 55/2019 (WZ), (Gajubha Jesar Jadeja vs Union
of India &Ors.), has inter alia observed that Cold Rolled Stainless
Steel Manufacturing Industries require prior environment clearance
but, having regard to the fact that there were a large number of
such mills operating on the strength of Consent to Establish (CTE)
and Consent to Operate (CTO), the Hon’ble Tribunal has held
D that opportunity should be provided to such units to fall within the
Environment Clearance regime by granting a period of at least
one year to operate for the purpose;
And whereas, the Central Government, keeping in view
the impact caused due to the Covid19 pandemic has taken a
E considered decision in line with the above said order of the Hon’ble
National Green Tribunal, so as to provide a window period for
such re-rolling or cold rolling units to obtain prior Environmental
Clearance;
And whereas, the Central Government is of the view that
F steel re-rolling operations fall under the purview of the secondary
metallurgical processing industry and require Environment
Clearance as per item 3(a), relating to Metallurgical Industries
(Ferrous and Non-ferrous), of the Schedule to the notification of
the Government of India in the erstwhile Ministry of Environment
and Forest, published in the Gazette of India, Extraordinary, Part
G II, Section 3, Sub-section (ii), vide notification number S.O. 1533
(E), dated the 14th September, 2006, mandating the requirement
of prior environmental clearance for the projects covered in its
Schedule (hereinafter referred to as the said notification), wherein
all non–toxic secondary metallurgical processing units with
H 6
For short, the ‘Environment Act’
GAJUBHA JADEJA JESAR v. UNION OF INDIA & ORS. 289
[HEMANT GUPTA, J.]

capacities greater than 5000 tonnes/annum (TPA) fall under A
category B;
Now, therefore, in exercise of the powers conferred by
section 3 of the Environment (Protection) Act, 1986 (29 of 1986),
the Central Government hereby directs that all the standalone re-
rolling units or cold rolling units, which are in existence and in B
operation as on the date of this notification, with valid Consent to
Establish (CTE) and Consent to Operate (CTO) from the
concerned State Pollution Control Board or the Union territory
Pollution Control Committee, as the case may be, shall apply online
for grant of Terms of Reference (ToR) followed by Environment
Clearance and the said units shall be granted Standard Terms of C
Reference as per item 3(a) of the said notification and shall be
exempted from the requirement of public consultation:
Provided that the application for the grant of ToR shall be
made within a period of one year from the date of this notification.
2. This notification shall come in to force from the date of D
its publication in the Official Gazette.
[F. No. IA-J-11013/8/2019-IA.II(I)]
Dr. SUJIT KUMAR BAJPAYEE, Jt. Secy”
10. With this background, the parties have addressed arguments
on the question of jurisdiction of the Tribunal to pass an order to operate E
a unit without Environmental Clearance and the decision of closure of
the unit.
11. It may be stated that there are 1689 similar Re-Rolling/Cold
Re- Rolling Steel Plants in the country out of which 403 plants are in the
State of Gujarat itself. All the units have been set up without obtaining F
prior Environmental Clearance as there was an ambiguity whether such
Rolling Steel Mills are required to obtain prior Environmental Clearance.
12. Ms. Anitha Shenoy, learned senior counsel for the applicant
relies upon judgments of this Court reported as Common Cause v. Union
of India & Ors.7, Hanuman Laxman Aroskar v. Union of India8 G
and Alembic Pharmaceuticals Limited v. Rohit Prajapati & Ors.9 to
7
(2017) 9 SCC 499
8
(2019) 15 SCC 401
9
(2020) 17 SCC 157

H
290 SUPREME COURT REPORTS [2022] 17 S.C.R.

A contend that prior Environmental Clearance is mandatory. Since the unit
has been set up in violation of the notification, the Tribunal could not
permit the unit to operate.
13. On the other hand, Mr. Shyam Divan, learned senior counsel
for the Project Proponent submitted that in terms of Section 21 of the
B NGT Act, the Tribunal is competent to pass an order towards sustainable
development. It is contended that the order of the Tribunal granting time
of at least one year is based upon report of the recommendation of the
EAC. The EAC recommended that Re-Rolling Units are established or
operating with CTE/CTO from the concerned State Pollution Control
Boards, therefore, a period of one year may be allowed for this
C recommended conversion to Environment Clearance regime.
14. Mr. Divan also referred to an affidavit filed on behalf of the
Ministry referring to the report submitted by a high-level Expert
Committee under the Chairmanship of Dr. Indranil Chattoraj, Director,
National Metallurgical Laboratory, Jamshedpur. The Committee noted
D that there is ambiguity in the EIA notification with respect to applicability
of Environmental Clearance for non-toxic secondary metallurgical
processing industry. Therefore, in order to bring out clarity, the Ministry
may amend schedule 3(a) of the EIA notification. The relevant assertion
from the affidavit reads thus:
E “7. That the committee after conducting a series of meetings
submitted its report on 17/01/2022. The committee, inter- alia, has
recommended that
i. “That there is an ambiguity in the EIA notification, 2006 with
respect to the applicability of EC for non-toxic secondary
metallurgical processing industry.
F
ii. Steel re-rolling mills [Hot rolling (or) Cold rolling] are one of the
processes in the secondary metallurgical processes and attracts
the provisions of the Environment Impact Assessment (EIA)
Notification, 2006.
iii. There are around 1689 standalone steel re-rolling mills operating
G across the country without requisite Environment Clearance and
such unit may be brought under EC regime by providing an adequate
time frame.
iv. Revised threshold limits for primary and secondary metallurgical
industry prescribed under chapter 6 may be considered by the
H Ministry for amending the schedule 3(a) of EIA Notification, 2006
GAJUBHA JADEJA JESAR v. UNION OF INDIA & ORS. 291
[HEMANT GUPTA, J.]

in order to bring out clarity on the applicability of EC for difference A
secondary processes in metallurgical industry.
That a copy of the report of the HLEC has been annexed as
ANNEXURE R/2.
8. That it is humbly submitted that Ministry is in the process of
bringing out suitable amendment in the EIA Notification 2006 in B
line with the recommendations made by the Committee, in order
to remove the ambiguity with respect to the applicability of EC
for non-toxic secondary metallurgical processing industry.”
15. It is in pursuance of such report, the amendment was published
on 20.7.2022. C
16. Mr. Divan further relies upon an order passed by this Court in
Municipal Corporation of Greater Mumbai v. Ankita Sinha & Ors.10
wherein the question as to whether the Tribunal has suo moto jurisdiction
to entertain proceedings under the NGT Act were examined. The scope
of jurisdiction of the Tribunal was also considered. D
17. Mr. Divan also refers to an order passed by this Court reported
as Pahwa Plastics Pvt. Ltd. & Anr. v. Dastak NGO & Ors.11 wherein
the order passed by the Tribunal, holding that the manufacturing units
which do not have prior Environmental Clearance could not be allowed
to operate, was set aside. E
18. We have heard learned counsel for the parties and find no
error in the order passed by the Tribunal. The order of the Tribunal is
based upon recommendation of the EAC which suggested that one year
time should be granted to the industry to comply with the EIA notification
dated 14.9.2006. The stand of the Ministry as well as the Project F
Proponent is that there was ambiguity in the EIA notification 2006. 1689
units have come up in the country on the basis of CTE and CTO regime.
It is not a case of ambiguous interpretation in respect of one or two units
but the entire country was having the same interpretation that Re-Rolling
Steel Plants do not require a prior Environmental Clearance. The
G
ambiguity has been removed only on 20.7.2022 when the notification
has been amended, as reproduced above. Since there was ambiguity
earlier, the Tribunal had granted time to the Project Proponent to comply
with the requirement of Environmental Clearance.
10
2021 SCC OnLine SC 897
11
2022 SCC OnLine SC 362 H
292 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 19. Such direction of the Tribunal is, in fact, arising out of scope
of powers conferred on the Tribunal under Section 21 of the NGT Act.
This Court in Ankita Sinha considering the suo moto powers of the
Tribunal held as under:
“98. The NGT Act, when read as a whole, gives much leeway to
B the NGT to go beyond a mere adjudicatory role. The Parliament’s
intention is clearly discernible to create a multifunctional body,
with the capacity to provide redressal for environmental exigencies.
Accordingly, the principles of environmental justice and
environmental equity must be explicitly acknowledged as pivotal
threads of the NGT’s fabric. The NGT must be seen as a sui
C generis institution and not unus multorum, and its special and
exclusive role to foster public interest in the area of environmental
domain delineated in the enactment of 2010 must necessarily
receive legal recognition of this Court.
xxx xxx xxx
D
102. In circumstances where adverse environmental impact may
be egregious, but the community affected is unable to effectively
get the machinery into action, a forum created specifically to
address such concerns should surely be expected to move with
expediency, and of its own accord. The potentiality of
E disproportionate harm imposes a higher obligation on authorities
to preserve rights which may be waylaid due to such restrictive
access. It is also noteworthy that the “global impacts of climate
change will fall disproportionately on minority and low-
income communities”.12 Thus, an affirmative role, beyond mere
F adjudication at the instance of applicant, is certainly required for
serving the ends of environmental justice, as the statute itself
requires of the NGT. We cannot validate an argument which
furthers uncertainty to justify the role of a spectator, if not inaction,
and would most assuredly result in injustice.

G 103. The NGT, with the distinct role envisaged for it, can hardly
afford to remain a mute spectator when no-one knocks on its
door. The forum itself has correctly identified the need for
collective stratagem for addressing environmental concerns. Such
12
Scott La Franchi, Surveying the Precautionary Principle’s Ongoing Global
Development : The Evolution of an Emergent Environmental Management Tool, [32
H B.C. Envtl. Aff. L. Rev. 679 (2005)
GAJUBHA JADEJA JESAR v. UNION OF INDIA & ORS. 293
[HEMANT GUPTA, J.]

a society centric approach must be allowed to work within the A
established safety valves of the principles of natural justice and
appeal to the Supreme Court. The hands- off mode for the NGT,
when faced with exigencies requiring immediate and effective
response, would debilitate the forum from discharging its
responsibility and this must be ruled out in the interest of justice.”
B
20. In Pahwa Plastics Pvt. Ltd., an establishment had been set
up pursuant to CTE and CTO from the concerned statutory authority.
The establishment applied for ex-post facto Environmental Clearance.
In these circumstances, this Court held that ex-post Environmental
Clearance should not ordinarily be granted but it cannot be declined with
pedantic rigidity, regardless of the consequences of stopping the operation. C
Hence, the order of the Tribunal to close the units was found to be
erroneous. The order of closure of establishments for the lack of
Environmental Clearance was set aside by this Court, inter alia, for the
reason that whether the unit contributing to the economy and providing
livelihood to hundreds of people set up in pursuance to requisite approvals D
of the concerned statutory authorities should be closed down for the
technical irregularity or want of prior Environmental Clearance. This
Court held as under:
“54. The manufacturing units of the Appellants appoint about 8,000
employees and have a huge annual turnover. An establishment E
contributing to the economy of the country and providing livelihood
ought not to be closed down only on the ground of the technical
irregularity of not obtaining prior Environmental Clearance
irrespective of whether or not the unit actually causes pollution.
xx xx xx F
56. As held by this Court in Electrosteel Steels Limited (supra)
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 a Notification under the EP Act G
cannot be declined with pedantic rigidity, oblivious of the
consequences of stopping the operation of mines, running factories
and plants.
57. The 1986 Act does not prohibit ex post facto Environmental
Clearance. Grant of ex post facto EC in accordance with law, in
H
294 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 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 our 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
B
others dependent on the project, if such projects comply with
environmental norms.
xx xx xx
60. Even though this Court deprecated ex post facto clearances,
in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct
C closure of the units concerned but explored measures to control
the damage caused by the industrial units. This Court held:—
“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
D by the High Court.”
xx xx xx
63. Ex post facto environmental clearance should not be granted
routinely, but in exceptional circumstances taking into account all
relevant environmental factors. Where the adverse consequences
E of denial of ex post facto approval outweigh the consequences
of regularization of operations by grant of ex post facto approval,
and the 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. The deviant industry may
F
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.
64. The question in this case is, whether a unit contributing to the
economy of the country and providing livelihood to hundreds of
G people, which has been set up pursuant to requisite approvals
from the concerned statutory authorities, and has applied for ex
post facto EC, should be closed down for the technical irregularity
of want of prior environmental clearance, pending the issuance of
EC, even though it may not cause pollution and/or may be found
H to comply with the required norms. The answer to the aforesaid
GAJUBHA JADEJA JESAR v. UNION OF INDIA & ORS. 295
[HEMANT GUPTA, J.]

question has to be in the negative, more so when the HSPCB was A
itself under the misconception that no environment clearance was
required for the units in question. HSPCB has in its counter
affidavit before the NGT clearly stated that a decision was taken
to regularize units such as the Apcolite Yamuna Nagar and Pahwa
Yamuna Nagar Units, since requisite approvals had been granted
B
to those units, by the concerned authorities on the misconception
that no EC was required.
xx xx xx
66. Ex post facto EC should not ordinarily be granted, and certainly
not for the asking. At the same time ex post facto clearances
and/or approvals cannot be declined with pedantic rigidity, C
regardless of the consequences of stopping the operations. This
Court is of the view that the NGT erred in law in directing that the
units cannot be allowed to function till compliance of the statutory
mandate.”
21. The judgment in Common Cause referred to by Ms. Shenoy D
is of no help to support her arguments as the question was whether
illegal mining can be said to be within the leased area for mining. It was
held that illegal mining takes within its fold excess extraction of a mineral
over the permissible limit even within the mining lease area under the
Mines and Minerals (Development and Regulation) Act, 1957. E
22. In Hanuman Laxman Aroskar, this Court held that the EIA
notification of the year 2006 demonstrates an increasing awareness of
the complexities of the environment and the heightened scrutiny required
to ensure its continued sustenance, for today and for generations to come.
It embodies a commitment to sustainable development. It was held as
under: F
“56. The 2006 Notification embodies the notion that the
development agenda of the nation must be carried out in
compliance with norms stipulated for the protection of the
environment and its complexities. It serves as a balance between
development and protection of the environment: there is no trade- G
off between the two. The protection of the environment is an
essential facet of development. It cannot be reduced to a technical
formula. The notification demonstrates an increasing awareness
of the complexities of the environment and the heightened scrutiny
required to ensure its continued sustenance, for today and for
H
296 SUPREME COURT REPORTS [2022] 17 S.C.R.

A generations to come. It embodies a commitment to sustainable
development. In laying down a detailed procedure for the grant of
an EC, the 2006 Notification attempts to bridge the perceived gap
between the environment and development.”
23. In Alembic Pharmaceuticals Limited, the validity of circular
B dated 14.5.2002 was in question. This Court found that such circular is
contrary to the EIA notification of 1994. It was decided by the Ministry
that the industrial units which had gone into production without obtaining
an EC would have to apply for and obtain an ex- post facto EC. The said
judgment has no applicability to the facts of the present case where the
Ministry itself is of the opinion that there was an ambiguity in the EIA
C notification of 2006. Such ambiguity has been removed only when the
EIA notification was subsequently amended on 20.7.2022. Therefore,
the judgments referred to by Ms. Shenoy are not applicable to the facts
of the present case.
24. We are constrained to point out that out of 1689 units in the
D country, the applicant has chosen the Project Proponent as it appears to
be a motivated petition to target the Project Proponent though the Cold
Steel Rolling Mills in the country were operating under the same regime.
Not only the Project Proponent, but the country also has suffered
immensely on account of closure of the unit which was export oriented
unit. It may be noticed that the Gujarat State Pollution Control Board
E has chosen the Project Proponent to serve with a closure notice on
25.6.2021. The unit is lying closed since then. In view of the amendment
in the EIA notification dated 20.7.2022, the unit has time to seek
Environmental Clearance in terms of the time line mentioned in the
notification. Therefore, the order of closure of the unit cannot be
F sustained.
25. In view of the said fact, Civil Appeal No. 3116 of 2020 is
dismissed. I.A. No. 81563 of 2021 in Civil Appeal No. 3576 of 2020
challenging the closure notice issued by Gujarat State Pollution Control
Board dated 25.6.2021 is allowed and the closure notice is quashed. The
Civil Appeal No. 3576 of 2020 stands disposed of in the above terms.
G

Ankit Gyan and Anurag Bhaskar Appeals disposed of.
(Assisted by : Bodhi Ramteke, LCRA)

H