D. SWAMY versus KARNATAKA STATE POLLUTION CONTROL BOARD AND ORS

Citation: [2022] 15 S.C.R. 547 · Decided: 22-09-2022 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Dismissed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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[2022] 15 S.C.R. 547
547
D. SWAMY
V.
KARNATAKA STATE POLLUTION CONTROL BOARD AND
ORS.
(Civil Appeal No. 3132 of 2018)
SEPTEMBER 22, 2022
[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
National Green Tribunal Act, 2010: s. 22 – Environmental
Impact Assessment Notification 2006 – Ex Post facto Environmental
clearance (EC) – Respondent No.3 applied to the respondent no.1-
State Pollution Control Board for consent to establish a Common
Bio-Medical Waste Treatment Facility – Respondent no.1 accorded
consent – Thereafter, in terms of amended Entry 7(da) of the
Notification of 2006, the Bio-Medical Waste Treatment Facilities
were required to obtain EC from the Ministry of Environment and
Forests-MOEF – Representation by villagers seeking order banning
establishment of Common Bio-Medical Waste Treatment Facility by
respondent No. 3 – Respondent No.1 then issued notices to the
respondent No.3, calling upon it to submit a report of compliance
of pollution norms – Pursuant thereto, instructions by the respondent
no. 1 that the application for consent to be accompanied with EC –
Respondent no 3 re-submitted its application for consent which had
earlier been rturned – Respondent No.1 granted the respondent
No.3 consent to operate its Common Bio-Medical Waste Treatment
Facility – Appellant challenged the consent granted to the respondent
no.3 and sought direction for closure of the Common Bio-Medical
Waste Treatment Facility run by the respondent No.3, on the ground
of alleged non-compliance of the provisions of the notification of
2006, as amended – Dismissal of the application by NGT –
Meanwhile, the Central Government issued a Notification which
provided for grant of ex post facto EC for project proponents who
had commenced, continued or completed a project without obtaining
EC under the EP Act/EP Rules or the Notification – On appeal,
held: Need to comply with the requirement to obtain EC is non-
negotiable – However, the EP Act does not prohibit ex post facto
EC – Ex post facto environmental clearance should ordinarily not
be granted routinely, but in exceptional circumstances taking into
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SUPREME COURT REPORTS
[2022] 15 S.C.R.
account all relevant environmental factors – Where the adverse
consequences 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 – Operation of a Bio-Medical Waste Treatment Facility is in
the interest of prevention of environmental pollution – Closure of
the facility only on the ground of want of prior Environmental
Clearance would be against public interest – Thus, no grounds to
interfere with the judgment and order of the NGT – Water (Prevention
and Control of Pollution) Act, 1974 – Air (Prevention and Control
of Pollution) Act, 1981.
Dismissing the appeal, the Court
HELD: 1.1 The SoP was formulated by the said Office
Memorandum dated 7th July 2021. In terms of the SoP, the
proposal for grant of EC in cases of violation are to be considered
on merits, with prospective effect, applying principles of
proportionality and the principle that the polluter pays and is liable
for costs of remedial measures. [Para 31 and 32][559-C-D]
1.2 Words and phrases and/or sentences in a judgment
cannot be read in the manner of a statute, and that too out of
context. The observation of the Division Bench that a one time
relaxation was permissible, is not to be construed as a finding
that relaxation cannot be made more than once. If power to amend
or modify or relax a notification and/or order exists, the notification
and/or order may be amended and/or modified as many times, as
may be necessary. [Para 36][562-D-E]
1.3 The Division Bench of Madras High Court fell in error
in staying the said office memorandum, by relying on observations
made by this Court in Alembic Pharmaceuticals Ltd.’s case, in the
context of a circular which was contrary to the statutory
Environment Impact Notification of 1994. The attention of the
High Court was perhaps not drawn to the fact that the notification
of 7th July 2021 was in pursuance of the statutory notification of
2017 which was valid. [Para 37][562-F-H]
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1.4 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 and/or removal of technical
irre

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