ALEMBIC PHARMACEUTICALS LTD. versus ROHIT PRAJAPATI & ORS.

Citation: [2020] 10 S.C.R. 677 · Decided: 01-04-2020 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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     ALEMBIC PHARMACEUTICALS LTD.
v.
ROHIT PRAJAPATI & ORS.
(Civil Appeal No. 1526 of 2016)
APRIL 01, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
AJAY RASTOGI, JJ.]
Environment (Protection) Act 1986 – s.3 – 1994 Environmental
Impact Assessment (EIA) notification mandated prior Environmental
Clearance (EC) for setting up and expansion of industrial units
falling within thirty categories – Deadline extended by various
circulars – 2002 Circular while further extending the deadline
allowed for ex post facto ECs – Quashed by National Green Tribunal
(NGT) – On appeal, held: Concept of an ex post facto EC is in
derogation of the fundamental principles of environmental
jurisprudence – It is an anathema to the 1994 EIA notification –
Allowing for an ex post facto clearance would essentially condone
the operation of industrial activities without the grant of an EC – It
would be contrary to both the precautionary principle as well as
the need for sustainable development – 2002 circular alters the
application of the 1994 EIA notification which has a statutory
character – Being an administrative decision, it is beyond the scope
of s.3 – It cannot be said to be a measure for protecting and
improving the quality of environment and is not protected by s.3 –
No jurisdictional bar on NGT to enquire into its vires – In case of
the three industries in question, no ECs were sought before the
commencement or expansion of operations, as mandated by the 1994
EIA notification – They continued to operate in the teeth of the said
notification – Further, none of these industries are entitled to the
benefit of the exemption contained in Clause 8 to the explanatory
note of the 1994 notification – However, NGT’s directions for
revocation of the ECs and closure of the units do not accord with
the principle of proportionality – Industries to deposit compensation
of ` 10 crores each, in addition to the amount directed by NGT –
Environment (Protection) Rules 1986 – Constitution of India –
Art.142.
Environment (Protection) Act 1986 – Rules/Regulations under
– Jurisdiction of NGT to strike down – Discussed.
[2020] 10 S.C.R. 677
677
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SUPREME COURT REPORTS
[2020] 10 S.C.R.
Allowing the appeals, the Court
HELD: 1. Section 3(1), Environment (Protection) Act 1986
is an enabling provision for the Central Government to undertake
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. This limb of the submission of the
Additional Solicitor General is crucial to the issue as to whether
the NGT has exceeded its jurisdiction since the decision in Sterlite
holds that the NGT, while exercising its appellate jurisdiction,
“cannot strike down rules or regulations made under this Act”.
To demonstrate that the NGT did not have the jurisdiction to
strike down the circular dated 14 May 2002, it was urged that
the circular was issued by the MoEF pursuant to its powers under
Section 3 of the Environment Protection Act 1986. There is an
inherent difficulty in accepting the submission. Before this Court,
the Union of India has not pleaded the case that the circular dated
14 May 2002 is a measure which is traceable to the provisions of
Section 3. On the contrary, in its pleadings the Union of India
construed it as a “purely administrative decision”. The omission
in the appeal to make any attempt to sustain the circular dated
14 May 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 May 2002 in fact does quite the contrary. 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 the environment. The circular
dated 14 May 2002 allowed defaulting industrial units who had
commenced activities without an EC to cure the defaul

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