Confederation of Real Estate Developers of India (CREDAI) vs Vanashakti and Another

2025 INSC 1326 REPORTABLE

IN THE SUPREME COURT OF INDIA INHERENT/ORIGINAL JURISDICTION

REVIEW PETITION (C) NO. OF 2025 DIARY NO. 41929 OF 2025

IN

WRIT PETITION (C) NO.1394 OF 2023

CONFEDERATION OF REAL ESTATE DEVELOPERS OF INDIA (CREDAI) …PETITIONER

VERSUS

VANASHAKTI AND ANOTHER …RESPONDENTS

INDEX

I. INTRODUCTION ...................................................................... 2 II. SUBMISSIONS ......................................................................... 9 III. DISCUSSION AND ANALYSIS.................................................. 14 a. Common Cause v. Union of India and Others ................... 20 b. Alembic Pharmaceuticals Limited v. Rohit Prajapati and Others...................................................................................... 26 c. Electrosteel Steels Limited v. Union of India and Others . 35 d. D. Swamy v. Karnataka State Pollution Control Board and Others...................................................................................... 40 e. Pahwa Plastics Private Limited and Another v. Dastak NGO and Others............................................................................... 49 f. Judicial Discipline and Judicial Propriety ......................... 49 g. Effect of JUR .................................................................... 67 h. Municipal Corporation of Greater Mumbai and Others v. Pankaj Babulal Kotecha and Others ........................................ 76 i. Bindu Kapurea v. Subhashish Panda and Others .............. 81 IV. CONCLUSION ...................................................................................................83

1 JUDGMENT

B.R. GAVAI, CJI

I. INTRODUCTION

1. By way of the present review petition, the petitioner

seeks recall of the judgment and final order dated 16th May

2025 passed by this Court in the case of Vanashakti v. Union

of India1.

2. Though certain other review petitions, including the

one filed by the Union of India, and various Interlocutory

Applications (IAs) for modification/clarification of JUR are

pending, it was decided that the lead review petition i.e., the

present one would be heard first and that after the outcome of

this review petition, rest of the applications would be

considered. We have, however, also heard learned counsel for

the other review petitioners and the learned counsel for those

who have filed applications for modification/clarification of the

JUR.

3. Vide JUR, this Court has directed thus:

“35. We are, however, conscious of the fact that ex post facto EC may have been granted in certain cases both under the 2017 notification and the 2021 OM.

1 2025 SCC OnLine SC 1139, (Hereinafter, “JUR”).

2 ECs already granted under 2017 notification and the 2021 OM, at this stage, should not be disturbed. 36. Hence, we pass the following order: a) We hold that the 2017 notification and the 2021 OM as well as all circulars/orders/OMs/notifications issued for giving effect to these notifications are illegal and are hereby struck down; b) We restrain the Central Government from issuing circulars/orders/OMs/notifications providing for grant of ex post facto EC in any form or manner or for regularising the acts done in contravention of the EIA notification; c) We clarify that the ECs already granted till date under the 2017 notification and the 2021 OM shall, however, remain unaffected.”

4. The facts giving rise to the present review petition are

as under:

5. In pursuance of the powers conferred by sub-section

(1) and clause (v) of sub-section (2) of Section 3 of the

Environment (Protection) Act, 19862, read with clause (d) of sub-

rule (3) of Rule 5 of the Environment (Protection) Rules, 19863,

the Central Government through the erstwhile Ministry of

Environment and Forest (now the Ministry of Environment,

Forest and Climate Change4) issued a notification dated 14th

September 2006 being the Environment Impact Assessment

2 Hereinafter, “EP Act”. 3 Hereinafter, “EP Rules”. 4 Hereinafter, “MoEF&CC”.

3 Notification 20065. Vide the said notification, it was provided

that the regulatory authority in respect of the matters falling

under Category ‘A’ would be MoEF&CC and in respect of the

matters falling under Category ‘B’, the State Government

through the State Environment Impact Assessment Authority6

would be the regulatory authority. In the Schedule to the 2006

Notification, Categories ‘A’ and ‘B’ listed out various projects.

6. On 14th March 2017, another notification came to be

issued by the MoEF&CC7. The said notification was issued in

order to provide a process for grant of Environmental

Clearance8 in respect of the projects, which had started the

work on site, expanded the production beyond the limit of EC

or changed the product mix without obtaining prior EC under

the 2006 Notification.

7. The 2017 Notification, in a nutshell, enabled the

regulatory authorities to grant EC in respect of the projects

which did not have prior EC. The said notification provided

that in cases of violation, an action would be taken against the

project proponent(s) by the respective Central or State

5 Hereinafter, “2006 Notification”. 6 Hereinafter, “SEIAA”. 7 Hereinafter, “2017 Notification”. 8 Hereinafter, “EC”.

4 Pollution Control Board under Section 19 of the EP Act and

that no consent to operate or occupancy certificate would be

issued till the project is granted the EC. It provided that the

cases of violation would be appraised by the respective Sector

Expert Appraisal Committees9 constituted by the Central

Government under sub-section (3) of Section 3 of the EP Act.

It further provided that the SEACs would examine as to

whether under the prevailing laws, the project is permissible

and expansion which has been done, can be run sustainably

under compliance of environmental norms with adequate

environmental safeguards. The said notification also clearly

provided that where the findings of the SEACs are negative,

closure of the project would be recommended along with other

actions under law.

8. The 2017 Notification further provided that where the

findings of the SEACs was in the affirmative, the projects

would be prescribed the appropriate Terms of Reference for

undertaking Environment Impact Assessment10 and

preparation of Environment Management Plan. It also

9 Hereinafter, “SEAC”. 10 Hereinafter, “EIA”.

5 provided that the SEACs would stipulate the implementation

of Environmental Management Plan, comprising remediation

plan and natural and community resource augmentation plan

corresponding to the ecological damage assessed and

economic benefit derived due to violation as a condition for the

EC. It further provided that the projects or activities which

were in violation as on the date of the said notification would

only be eligible to apply for EC under the said notification. A

window of six months from the date of the notification was also

provided to make an application for EC under the said

notification.

9. It appears that the National Green Tribunal11, Principal

Seat, New Delhi, in the case of Tanaji B. Gambhire v. Chief

Secretary, Government of Maharashtra and Others12, vide

order dated 24th May 2021, inter-alia directed the MoEF&CC

to prepare a proper Standard Operating Procedure13 for grant

of EC in cases of violation of environment norms. In pursuance

to the said direction of the NGT, an Office Memorandum dated

7th July 202114 came to be issued by the MoEF&CC, whereby

11 Hereinafter, “NGT”. 12 Appeal No.34/2020 (WZ). 13 Hereinafter, “SOP”. 14 Hereinafter, “2021 OM”.

6 the SOP for identification and handling of violation cases

under the 2006 Notification was formulated.

10. It further appears that the 2017 Notification was

challenged by way of a writ petition before the High Court of

Judicature at Madras being WP No. 11189 of 2017 titled

“Puducherry Environment Protection Association v. Union

of India” which was decided vide judgment and final order

dated 13th October 2017. It appears that in the said case a

statement was made on behalf of the Union of India that the

2017 Notification was only a one-time measure. After

recording the same, the High Court disposed of the said writ

petition. It further appears that vide order dated 14th March

2018 passed by the High Court of Judicature at Madras in

Appaswamy Real Estates Limited v. Puducherry

Environment Protection Association and Another15, the

time period under the 2017 Notification for submission of

proposals by project proponents was extended by a further

period of thirty days.

11. Thereafter, three writ petitions were filed before this

Court. The first one being Writ Petition (C) No.1394 of 2023 for

15 2018 SCC OnLine Mad 1283

7 quashing of the 2021 OM. A prayer was also made for issuing

a writ of mandamus directing the MoEF&CC and

SEIAA/SEACs not to process and entertain any application for

ex-post facto EC after 13th May 2018.

12. The second writ petition being Writ Petition (C) No.118

of 2019 challenged the validity of the 2017 Notification issued

by the MoEF&CC.

13. The third writ petition being Writ Petition (C) No.115 of

2024 challenged the validity of 2017 Notification and the 2021

OM.

14. In the meantime, the Madras High Court by a

judgment and order dated 30th August 2024 in the case of

Fatima v. Union of India16 quashed the 2021 OM and

another OM dated 19th February 2021. By way of Civil Appeals

No.381-382 of 2025, the said judgment was challenged before

this Court by the original writ petitioner(s) on the ground that

the High Court erred in holding that the said judgment would

be applicable prospectively.

16 2024 SCC OnLine Mad 4514

8 15. This Court, in JUR, after relying on the judgments of

this Court in the cases of Common Cause v. Union of India

and Others17, Alembic Pharmaceuticals Limited v. Rohit

Prajapati and Others18 and Electrosteel Steels Limited v.

Union of India and Others19, observed as under:

“27. ……Perusal of the provisions of Section 15 shows that even if the penalty is paid by the project proponent, it will not regularise the project. Therefore, even after the payment of penalty, if the project is under construction, the same has to be stopped and demolished and even if operation has already commenced, the same has to be stopped and demolished. Therefore, the construction work has to be demolished.” [Emphasis supplied]

16. This Court, in JUR, in its ultimate conclusion, held

that the 2017 Notification which permitted grant of ex-post

facto EC and the 2021 OM were bad in law and therefore were

quashed and set aside.

II. SUBMISSIONS

17. We have heard Shri Tushar Mehta, learned Solicitor

General for the Union of India appearing for applicant-Steel

Authority of India Limited (SAIL), Shri Kapil Sibal, learned

Senior Counsel appearing for applicant-State of Karnataka

17 (2017) 9 SCC 499 18 (2020) 17 SCC 157 19 (2023) 6 SCC 615

9 and Shri Mukul Rohatgi appearing for Review Petitioner

(CREDAI).

18. It is the contention of the learned Senior Counsel

supporting the review petition that certain relevant

paragraphs from the judgments in the cases of Common

Cause (supra), Alembic Pharmaceuticals Limited (supra)

and Electrosteel Steels Limited (supra) were not brought to

the notice of this Court when the proceedings leading to JUR

were heard. It is further submitted that in any case, the

judgment in the cases of D. Swamy v. Karnataka State

Pollution Control Board and Others20 and Pahwa Plastics

Private Limited and Another v. Dastak NGO and Others21,

were not brought to the notice of this Court. It is therefore

submitted that the result is that JUR has taken a view which

is not consistent with the judgments in the cases of Common

Cause (supra), Alembic Pharmaceuticals Limited (supra)

and Electrosteel Steels Limited (supra) and in any case, in

ignorance of the judgment in the cases of D. Swamy (supra)

and Pahwa Plastics Private Limited (supra).

20 (2023) 20 SCC 469 21 (2023) 12 SCC 774

10 19. It is submitted that even if two-Judges Bench while

deciding the JUR was of the view that D. Swamy (supra) and

Pahwa Plastics Private Limited (supra) do not lay down the

correct position of law, then the only option available to the

Bench was to refer the matter to a larger Bench.

20. Shri Tushar Mehta submitted that the project of SAIL,

which was started on the basis of the 2021 OM had almost

reached finality after complying with all the procedural

requirements including the conduct of the EIA. It is submitted

that the project was at the stage of grant of EC but on account

of JUR, EC cannot be granted, thereby resulting in a huge loss

to the public exchequer.

21. Shri Tushar Mehta further submitted that one of the

other projects that would be affected by JUR is the

construction of an AIIMS hospital building in the State of

Orissa comprising of 962 beds. He submitted that in case of

AIIMS the construction of the building is complete and all the

procedural requirements including the conduct of EIAs have

been completed and the project is at the final stage of grant of

EC.

11 22. Shri Tushar Mehta further submitted that in any case

though reliance is placed on the cases of Common Cause

(supra), Alembic Pharmaceuticals Limited (supra) and

Electrosteel Steels Limited (supra), if these judgments are

read in entirety, the ratio of these judgments is otherwise than

what has been held in the JUR. He therefore submitted that

the error apparent on the face of the record warrants

invocation of the inherent jurisdiction.

23. In support of the case of the review petitioner, Shri

Kapil Sibal gave an example of a greenfield Airport at

Vijayanagar in the State of Karnataka. He submitted that the

construction of the entire Airport is completed; but on account

of JUR, now the entire Airport will have to be demolished.

24. Shri Mukul Rohatgi submitted that in many cases,

where the building and construction project was initially

started, EC was not required inasmuch as the project was

below the 20,000 sq. m. above which an EC is required.

However, on account of subsequent developments, such as,

the building regulations being amended allowing the project

proponent additional built up area, the projects came in the

category of projects which require an EC. It is submitted that,

12 in any event all such projects are otherwise permissible in law.

It is therefore submitted that the effect of the JUR would be

that the entirely completed project would be first demolished,

thereafter the project proponent would apply for the EC and

once EC is obtained, the project would be reconstructed all

over again.

25. Shri Gopal Sankaranarayanan, Shri Sanjay Parikh and

Shri Raju Ramachandran, Shri Anand Grover and Ms. Anitha

Shenoy, learned Senior Counsel opposing the review petition

submitted that the review petition itself is not maintainable. It

is submitted that the review is almost in the nature of an

appeal which is not permissible in law.

26. On merits, it is submitted that the 2017 Notification

which provided for grant of ex-post facto EC was totally illegal

and contrary to the environmental jurisprudence. It is

submitted that, under the 2017 Notification, a one-time

window of six months was granted and as such, after a period

of six months from the date of the said notification had

expired, no application for ex-post facto EC could have been

granted. It is further submitted that the 2021 OM does not

record source of power and as such, is not sustainable in law.

13 It is further submitted that if the project proponents knowing

very well that they required ECs prior to the initiation of the

project, have undertaken the projects without an EC, then

they should suffer for such illegalities. It is further submitted

that a party cannot be permitted to take advantage of the

wrong committed by it. It is, therefore, submitted that the

review deserves to be dismissed.

III. DISCUSSION AND ANALYSIS

27. It cannot be in dispute that under the powers conferred

by clause (v) of sub-section (2) of Section 3 of the EP Act, the

Central Government is empowered to issue notifications for

restriction of areas in which any industries, operations or

processes or class of industries, operations or processes shall

not be carried out or shall be carried out subject to certain

safeguards.

28. Undisputedly, 2006 Notification provided for imposing

certain restrictions and prohibitions on new projects or

activities, or on the expansion or modernization of existing

projects or activities based on their potential environmental

impacts as indicated in the Schedule to the notification, being

undertaken in any part of India, unless prior EC has been

14 accorded in accordance with the objectives of National

Environment Policy as approved by the Union Cabinet on 18th

May 2006 and the procedure specified in the notification by

the Central Government or the State or Union Territory Level

Environment Impact Assessment Authority to be constituted

by the Central Government in consultation with the State

Government or the Union Territory Administration concerned

complied with. The said notification was issued after a draft

notification dated 15th September 2005 was made available to

the public and objections and suggestions from all persons

likely to be affected were invited. Only after the consideration

of all the objections and suggestions received by the Central

Government, was the 2006 Notification issued. The 2006

notification inter alia provided for requirement of a prior EC

for new projects or activities as categorized in the Schedule to

the said notification from the Central Government or as the

case may be the SEIAA duly constituted by the Central

Government, in accordance with the procedure specified in the

said notification.

29. The 2017 Notification was again issued by exercising

powers conferred by sub-section (1) and clause (v) of sub-

15 section (2) of Section 3 of the EP Act, read with sub-rule (3) of

Rule 5 of the EP Rules. Prior to the said notification also, a

draft notification was published on 10th May 2016. The said

notification was made available to the public on 10th May 2016

and after considering all objections and suggestions received

in response to the said draft notification, the final notification

was issued on 14th March 2017.

30. The 2017 Notification noticed that the MoEF&CC had

issued Office Memoranda dated 12th December 2012 and 27th

June 2013 to establish a process for grant of EC in cases of

violation of environmental norms. However, the conditions laid

down under the OM dated 12th December 2012, in paragraph

No. 5(i) and 5(ii) were held to be illegal by the judgment and

order of the High Court of Jharkhand dated 28th November

2014 in the case of Hindustan Copper Limited v. Union of

India22. Similarly, the NGT vide its order dated 7th July 2015

in S.P. Muthuraman v. Union of India and Another23 had

also held that the OMs dated 12th December 2012 and 27th

22 2014 SCC OnLine Jhar 2157 23 2015 SCC OnLine NGT 169

16 June 2013 could not alter or amend the provisions of the 2006

Notification and quashed the same.

31. The position being thus, the MoEF&CC deemed it

necessary for the purpose of protecting and improving the

quality of the environment and abating environmental

pollution that all entities not complying with environmental

regulation under the 2006 Notification be brought under

compliance within the environmental laws.

32. The 2017 Notification, therefore, provided for

establishing a process for appraisal of such cases of violation

for prescribing adequate environmental safeguards to entities.

It also provided that the process should be such that it deters

violation of provisions of 2006 Notification and the pecuniary

benefit of violation and damage to environment is adequately

compensated for.

33. The 2017 Notification also noted the judgment and

order of this Court in the case of Indian Council for Enviro-

Legal Action and Others v. Union of India and Others24

24 (1996) 3 SCC 212

17 wherein it was held that damages may be recovered under the

provisions of the EP Act.

34. The 2017 notification also provided that in cases of

violation, action would be taken against the project proponent

by the respective State or State Pollution Control Board under

the provisions of Section 19 of the EP Act. It further provided

that no consent to operate or occupancy certificate would be

issued till the project is granted the EC. It further also provided

that in cases where the project is not permissible under the

prevailing laws or expansion has been done which is not

permissible in law, such project will have to be closed. Only in

such cases where the SEIAAs find the project to be

permissible, the procedure for grant of EC would be

undertaken.

35. It is further to be noted that subsequently the NGT vide

order dated 24th May 2021 in the case of Tanaji B. Gambhire

(supra) directed that “a proper SOP be laid down for grant

of EC in such cases so as to address the gaps in binding

law and practice being currently followed”. The NGT also

observed that the MoEF&CC may also consider circulating

such SOPs to all SEIAAs in the country.

18 36. The 2021 OM specifically refers to the aforesaid

direction of the NGT. It also considered various

pronouncements of this Court as well as the High Courts of

Jharkhand and Madras and provides for a SOP dealing with

the violation cases.

37. The 2021 OM also provided that if a project is not

permissible under the prevalent laws like “a red industry

functioning in a CRZ-I area” it will have to be closed and

demolished. It further provided that in case of a project which

is otherwise permissible, such cases of violation shall be

subject to appropriate - (a) Damage Assessment; (b) Remedial

Plan; and (c) Community Augmentation Plan by Central level

SEACs or SEIAAs, as the case may be. It further provided that

after examining, if it is found that though the project may be

permissible but not environmentally sustainable in its present

form/configuration/features, then the project shall be

required to be modified so that the project would be

environmentally sustainable. However, if such a modification

is not possible, the project would have to be

demolished/closed. It further provided that if such a proposal

was a case for expansion, the project would be directed to

19 revert back to the extent of activity for which EC had been

granted earlier or to revert to the extent of activity for which

EC was not required (as the case may be). It can also be seen

that Clause 12 of the 2021 OM provides for huge penalties in

cases of violation.

38. Having referred to the 2017 Notification and 2021 OM,

let me consider the judgments on which the JUR relies.

a. Common Cause v. Union of India and Others

39. In the case of Common Cause (supra), the issue

involved concerned mining leases in certain districts of

Keonjhar, Sundergarh and Mayurbhanj in the State of Odisha.

In that respect, the lessees had rapaciously mined iron ore and

manganese ore thereby destroying the environment, forests

and caused misery to the tribals in the area.

40. In the said case, it is recorded that an IA came to be

filed in the pending writ petition of T.N. Godavarman

Thirumulpad v. Union of India25 by one Rabi Das, the editor

of a daily newspaper called Ama Rajdhani. This Court had

issued notice on 6th November 2009 and the Central

25 I.A. Nos.2746-48 of 2009 in WP(C) No.202 of 1995.

20 Empowered Committee26 was directed to file its report within

six weeks. Various orders came to be passed in the said

application from time to time. The final report of the CEC was

submitted on 25th April 2014 wherein one of the findings was

with regard to production of iron ore and manganese ore

without/in excess of the environmental clearance/mining

plan/consent to operate. From the said case, it can be seen

that independent to the proceedings before this Court, the

Central Government had issued a notification on 22nd

November 2010, whereby Justice M.B. Shah, a retired judge

of this Cout was appointed to conduct an inquiry on various

aspects of illegal mining. On the basis of the report filed by

Justice M.B. Shah, a writ petition being WP(C) No. 114 of 2014

came to be filed by Common Cause seeking various reliefs.

41. This Court in Common Cause (supra) considered the

effect of EIA Notification dated 27th January 199427 in

paragraphs 85 to 108, wherein this Court categorically held

that the said notification was mandatory in character and that

it was applicable to all mining operations and expansion of

26 Hereinafter, “CEC”. 27 Hereinafter, “1994 Notification”.

21 production or even increase in lease area, modernisation of the

extraction process, new mining projects and renewal of mining

leases. Thereafter, this Court considered the effect of 2006

Notification in paragraphs 109 to 125.

42. Relying on paragraph 125 of Common Cause (supra),

the JUR held that the concept of an ex post facto or a

retrospective EC is completely alien to environmental

jurisprudence including 1994 Notification and 2006

Notification.

43. In the case of Common Cause (supra), an argument

was advanced by the learned counsel for the mining

leaseholders that since many of them had been granted the

first deemed statutory renewal of the mining lease under Rule

24-A of the Mineral Concession Rules, 1960, the requirements

of 1994 Notification would not be applicable to them. The said

contention was rejected by this Court holding that in view of

the 1994 Notification, it was quite clear that the renewal of

mining lease would require a prior EC. It will be relevant to

refer to the following observations of this Court in Common

Cause (supra):

22 “123. We may also draw attention in this regard to a Circular dated 28-10-2004 issued by the MoEF wherein it was stated that in view of the decision in M.C. Mehta [M.C. Mehta v. Union of India, (2004) 12 SCC 118] all mining projects of major minerals of more than 5 ha lease area that had not yet obtained an EC would have to do so at the time of renewal of the lease. 124. Finally, it was submitted that whenever an EC is granted, it would have retrospective effect from the date of the application for grant of an EC. In this context, it was pointed out that there were enormous delays in granting an EC and that the Hoda Committee had noted with reference to EIA 2006 that if all goes well, the grant of an EC takes about 232 days whereas the international norm is that an EC is granted within six months or 180 days. According to the additional affidavit filed by some mining leaseholders, the period of 232 days mentioned by the Hoda Committee was actually a conservative estimate and that in fact it takes anything up to 390 days for the grant of an EC. It was submitted that the position was even worse under EIA 1994 since the MoEF rarely showed any urgency in the grant of an EC. Examples were cited before us to show that in some instances the grant of an EC took more than two years. Taking all this into consideration it was submitted that it would be more appropriate that the EC is given retrospective effect from the date of the application. 125. We are not in agreement with the learned counsel for the mining leaseholders. There is no doubt that the grant of an EC cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long-term impact. EIA 1994 is therefore very clear that if expansion or modernisation of any mining activity exceeds the existing pollution load, a prior EC is necessary and as already held by this Court in M.C. Mehta [M.C. Mehta v. Union of India, (2004) 12 SCC 118] even for

23 the renewal of a mining lease where there is no expansion or modernisation of any activity, a prior EC is necessary. Such importance having been given to an EC, the grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment. The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant.”

44. As rightly observed by this Court in JUR, this Court in

Common Cause (supra) specifically rejected the contention

that whenever an EC was granted, it would have retrospective

effect from the date of the application for grant of an EC. It is

thus clear that the argument that irrespective of the date of

grant of EC, it will have an effect from the date of its

application has specifically been rejected. The argument that,

since the grant of EC takes enormous time, it would be more

appropriate that the EC is given retrospective effect from the

date of application, also came to be rejected by this Court. This

Court observed that EC could be granted only after due

diligence and reasonable care since damage to the

environment could have a long-term impact. In this

background, this Court observed that the grant of an ex-post

facto EC would be detrimental to the environment and could

24 lead to irreparable degradation of the environment. This Court

therefore held that the EC would come into force not earlier

than the date of its grant.

45. It is recorded in the case of Common Cause (supra)

that after the report of the CEC dated 25th April 2014 was

considered, this Court in the case of Common Cause v. Union

of India28 passed a detailed interim order dated 16th May

2014. Vide the said order, it was directed that mining

operations in respect of 102 leaseholders which did not have

requisite EC shall remain suspended. However, it was clarified

that it was open to such leaseholders to move the authorities

concerned for necessary clearances, approval or consents. It

was further directed that as and when the mining lessees were

able to obtain all the clearances, approval or consents, they

may move this Court for modification of the said interim order.

This Court, in paragraph 188(5) of Common Cause (supra),

clarified that any iron ore or manganese ore extracted contrary

to the 1994 Notification or 2006 Notification would constitute

illegal or unlawful mining and compensation at 100% of the

28 (2014) 14 SCC 155

25 price of the mineral should be recovered from 2000-2001

onwards if the extracted mineral has been disposed of.

46. From paragraph 227 of Common Cause (supra), it

would be clear that this Court directed that the amounts

determined as due from all the mining leaseholders should be

deposited by them on or before 31st December 2017, and

subject to and only after compliance with statutory

requirements and full payment of compensation and other

dues, the mining leaseholders could restart their mining

operations.

47. It can thus be seen that in Common Cause (supra)

itself, though this Court directed the mining leaseholders who

did not have the EC initially to suspend the mining operations;

it permitted them to restart mining operations only after

statutory compliances were made and all dues were paid.

b. Alembic Pharmaceuticals Limited v. Rohit Prajapati and Others

48. The next judgment on which JUR relies is Alembic

Pharmaceuticals Limited (supra).

49. In the said case, this Court was considering the

judgment and order dated 8th January 2016 passed by the

26 NGT for the Western Zone, whereby a circular issued by the

Ministry of Environment & Forests29 dated 14th May 2002 was

quashed and set aside.

50. This Court in the said case noted that the 1994

Notification mandated prior ECs for setting up and expansion

of industrial projects falling within thirty categories. The

deadline for obtaining an EC under the 1994 Notification was

extended from time to time. As per circular dated 14th May

2002, challenged by the applicant before the Tribunal, the

period was further extended by MoEF till 31st March 2003. The

impugned circular, therefore, enabled the industrial units

which had gone into production without obtaining an EC

under the 1994 Notification to apply for and obtain an ex-post

facto EC. As such, the NGT quashed and set aside the said

circular.

51. The JUR refers to paragraphs 20, 21 and 23 of the

judgment in Alembic Pharmaceuticals Limited (supra),

which read thus:

“20. Section 3(1) 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 29 Hereinafter, “MoEF”.

27 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 NGT has exceeded its jurisdiction since the decision in Sterlite [T.N. Pollution Control Board v. Sterlite Industries (India) Ltd., (2019) 19 SCC 479] holds that NGT, while exercising its appellate jurisdiction, “cannot strike down rules or regulations made under this Act”. In the present case, to demonstrate that NGT did not have the jurisdiction to strike down the Circular dated 14-5-2002, 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 14-5-2002 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”. Ground (iii) in Para 3 of the memo of appeal states the position of the Union Government: “Because the Hon'ble Tribunal failed to appreciate that after the EIA Notification 1994 the opportunity to seek ex post facto environmental clearance was given to industries in background of far-reaching impact in terms of direct loss of livelihood of the employees working in the units which also supply inputs to other units and their indirect employment. It was submitted to the Hon'ble High Court of Gujarat that issuance of Circular dated 14- 5-2002, based on which environmental clearance was given, was purely an administrative decision before taking stringent action.” (emphasis supplied) 21. The omission in the appeal to make any attempt to sustain the Circular dated 14-5-2002 with reference to the provisions of Section 3 of the

28 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 14-5-2002 in fact does quite the contrary. It purported to allow an extension of time for industrial units to comply with the requirement of an EC. The EIA Notification dated 27- 1-1994 mandated that an EC has to be obtained before embarking on a new project or expanding or modernising an existing one. 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- 5-2002 allowed defaulting industrial units which had commenced activities without an EC to cure the default by an ex post facto clearance. Being an administrative decision, it is beyond the scope of Section 3 and cannot be said to be a measure for the purpose of protecting and improving the quality of the environment. The circular notes that there were defaulting units which had failed to comply with the requirement of obtaining an EC as mandated. The circular provided for an extension of time and inexplicably introduced the notion of an ex post facto clearance. In effect, it impacted the obligation of the industrial units to be in compliance with the law. The concept of ex post facto clearance is fundamentally at odds with the EIA Notification dated 27-1-1994. The EIA Notification of 1994 contained a stipulation that any expansion or modernisation of an activity or setting up of a new project listed in Schedule I “shall not be undertaken in any part of India unless it has been accorded environmental clearance”. The

29 language of the notification is as clear as it can be to indicate that the requirement is of a prior EC. A mandatory provision requires complete compliance. The words “shall not be undertaken” read in conjunction with the expression “unless” can only have one meaning : before undertaking a new project or expanding or modernising an existing one, an EC must be obtained. When the EIA Notification of 1994 mandates a prior EC, it proscribes a post activity approval or an ex post facto permission. What is sought to be achieved by the administrative Circular dated 14-5-2002 is contrary to the statutory Notification dated 27-1-1994. The Circular dated 14- 5-2002 does not stipulate how the detrimental effects on the environment would be taken care of if the project proponent is granted an ex post facto EC. The EIA Notification of 1994 mandates a prior environmental clearance. The circular substantially amends or alters the application of the EIA Notification of 1994. The mandate of not commencing a new project or expanding or modernising an existing one unless an environmental clearance has been obtained stands diluted and is rendered ineffective by the issuance of the administrative Circular dated 14-5-2002. This discussion leads us to the conclusion that the administrative circular is not a measure protected by Section 3. Hence there was no jurisdictional bar on NGT to enquire into its legitimacy or vires. Moreover, the administrative circular is contrary to the EIA Notification 1994 which has a statutory character. The circular is unsustainable in law. ………….. 23. The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA Notification dated 27-1-1994. It is, as the judgment in Common Cause [Common Cause v. Union of India, (2017) 9 SCC 499] holds, detrimental to the environment and could lead to irreparable degradation. The reason why a

30 retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision- making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.”

52. It can thus be seen that this Court, in paragraph 21 of

Alembic Pharmaceuticals Limited (supra), came to a

conclusion that the administrative circular was not a measure

protected by Section 3 of the EP Act and as such, there was no

jurisdictional bar on NGT to enquire into its legitimacy or vires.

This Court further held that the administrative circular was

contrary to the 1994 Notification which has a statutory

character.

31 53. This Court, therefore, in paragraph 23 of Alembic

Pharmaceuticals Limited (supra), rightly held that the

environment law could not countenance the notion of an ex-

post facto clearance inasmuch as the same would be contrary

to both the precautionary principle as well as the need for

sustainable development. However, thereafter from paragraph

24 onwards, this Court considered the individual cases.

54. After considering the individual cases in Alembic

Pharmaceuticals Limited (supra), this Court, in paragraph

37, posed a question for its consideration as under:

“37. The issue which must now concern the Court is the consequence which will emanate from the failure of the three industries to obtain their ECs until 14-5-2003 in the case of Alembic Pharmaceuticals Ltd., 17-7-2003 in the case of United Phosphorous Ltd., and 23-12-2002 in the case of Unique Chemicals Ltd. The functioning of the factories of all three industries without a valid EC would have had an adverse impact on the environment, ecology and biodiversity in the area where they are located………” [Emphasis supplied]

55. Thereafter, from paragraph 38 onwards in Alembic

Pharmaceuticals Limited (supra), this Court observed that

though it was not possible to individually determine the exact

extent of the damage caused to the environment by the three

32 industries, several circumstances must weigh with the Court

in determining the appropriate measure of restitution. This

Court recorded that it was not in dispute that all the three

industries did obtain ECs, though after several years of the

1994 Notification and commencement of production. It also

noticed that subsequent to the grant of the ECs, the

manufacturing units of all the three industries have also

obtained ECs for an expansion of capacity from time to time.

It noticed various circulars issued by MoEF extending time for

obtaining ECs. This Court also noted that this Court in the

cases of Goa Foundation (1) v. Union of India30 and Lafarge

Umiam Mining (P) Ltd. v. Union of India31 had upheld the

grant of ex-post facto EC. This Court also referred to the case

of Lafarge Umiam Mining (P) Ltd. (supra) and thereafter

observed thus:

“42. In this backdrop, this Court must take a balanced approach which holds the industries to account for having operated without environmental clearances in the past without ordering a closure of operations. The directions of NGT for the revocation of the ECs and for closure of the units do not accord with the principle of proportionality. At the same time, the Court cannot be oblivious to the environmental degradation caused by all three industries units that operated 30 (2005) 11 SCC 559 31 (2011) 7 SCC 338

33 without valid ECs. The three industries have evaded the legally binding regime of obtaining ECs. They cannot escape the liability incurred on account of such non-compliance. Penalties must be imposed for the disobedience with a binding legal regime. The breach by the industries cannot be left unattended by legal consequences. The amount should be used for the purpose of restitution and restoration of the environment. Instead and in place of the directions issued by NGT, we are of the view that it would be in the interests of justice to direct the three industries to deposit compensation quantified at Rs 10 crores each. The amount shall be deposited with GPCB and it shall be duly utilised for restoration and remedial measures to improve the quality of the environment in the industrial area in which the industries operate.” [Emphasis supplied]

56. This Court, therefore, adopted a balanced approach by

holding the industries to account for having operated without

ECs in the past but without ordering a closure of operations.

The Court held that the directions of the Tribunal for

revocation of the ECs and for closure of the units did not

accord with the principle of proportionality. This Court,

however, observed that, at the same time it cannot be oblivious

to the environmental degradation caused by all the three

industries that operated without valid ECs. The Court lastly

held that penalties may be imposed for disobedience with a

binding legal regime. In the result, to balance the damage done

34 to the environment, this Court imposed a cost of Rs.10 crore

each.

57. From the JUR, it appears that paragraphs 24 to 43 of

the judgment in Alembic Pharmaceuticals Limited (supra)

were not brought to the notice of this Court.

c. Electrosteel Steels Limited v. Union of India and Others

58. Insofar as the judgment and order in the case of

Electrosteel Steels Limited (supra) is concerned, this Court

was considering an order dated 16th September 2020 passed

by a learned Single Judge of the High Court of Jharkhand

whereby it discontinued the interim orders earlier passed by

the High Court. By the earlier orders, the appellant therein

was allowed to operate its unit under the supervisory

regulatory control of the Jharkhand State Pollution Control

Board and the said orders had been in force for over two years.

59. The JUR rightly relied on paragraph 72 of the judgment

in Electrosteel Steels Limited (supra) to hold that the need

to comply with the requirement of obtaining EC is non-

negotiable. However, it appears that paragraphs 73 to 87

thereof were not brought to the notice of this Court.

35 60. Immediately after paragraph 72, this Court observed

thus:

“73. The question is whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down for the technical irregularity of shifting its site without prior environmental clearance, without opportunity to the establishment to regularise its operation by obtaining the requisite clearances and permissions, even though the establishment may not otherwise be violating pollution laws, or the pollution, if any, can conveniently and effectively be checked. The answer has to be in the negative. 74. The Central Government is well within the scope of its powers under Section 3 of the 1986 Act to issue directions to control and/or prevent pollution including directions for prior environmental clearance before a project is commenced. Such prior environmental clearance is necessarily granted upon examining the impact of the project on the environment. 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 notifications under the 1986 Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of a running steel plant. 75. The 1986 Act does not prohibit ex post facto environmental clearance. Some relaxations and even grant of ex post facto EC in accordance with law, in 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 over (sic) view not impermissible. The court cannot be oblivious to

36 the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.” [Emphasis supplied]

61. It can thus be seen that this Court clearly put a

question to itself as to whether an establishment contributing

to the economy of the country and providing livelihood to

hundreds of people should be closed down on the ground of

technical irregularity of shifting its site without prior

environmental clearance, without opportunity to the

establishment to regularise its operation by obtaining the

requisite clearances and permissions, even though the

establishment may not otherwise be violating pollution laws;

or the pollution, if any, can conveniently and effectively be

checked. This Court answered the aforesaid question in the

negative.

62. In paragraph 74, this Court though held that ex-post

facto EC should not ordinarily be granted, and certainly not

for the asking, at the same time, this Court held ex-post facto

clearances and/or approvals and/or removal of technical

irregularities in terms of notifications under the EP Act cannot

37 be declined with pedantic rigidity, oblivious of the

consequences of stopping the operation of a running steel

plant.

63. Paragraph 75 of Electrosteel Steels Limited (supra)

clearly held that the EP Act does not prohibit ex-post facto EC.

It was held by this Court that some relaxations and even grant

of ex-post facto EC in accordance with law, in strict

compliance with rules, regulations, notifications etc., in

appropriate cases, where the projects are in compliance with,

or can be made to comply with environment norms, is not

impermissible. This Court held that 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 others dependent on the project, if such projects comply

with environmental norms.

64. The Court thereafter referred to the case of Lafarge

Umiam Mining (P) Ltd. (supra) and Electrotherm (India)

Ltd. v. Patel Vipulkumar Ramjibhai32, and observed thus:

“79. The Notification being S.O. 804(E) dated 14-3- 2017 was not an issue in Alembic Pharmaceuticals [Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157] . This 32 (2016) 9 SCC 300

38 Court was examining the propriety and/or legality of a 2002 Circular which was inconsistent with the EIA Notification dated 27-1-1994, which was statutory. Ex post facto environmental clearance should not however be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of ex post facto approval outweigh the consequences of regularisation of operation of an industry by grant of ex post facto approval and the industry or 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. Ex post facto approval should not be withheld only as a penal measure. The deviant industry may 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.” [emphasis supplied]

65. It can thus be seen that this Court clearly held that

where the adverse consequences of ex-post facto approval

outweigh the consequences of regularisation of operation of an

industry by grant of ex-post facto approval and the industry or

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.

39 d. D. Swamy v. Karnataka State Pollution Control Board and Others

66. It will also be relevant to note that two other judgments

of this Court in the cases of D. Swamy (supra) were also not

brought to the notice of this Court when JUR was heard.

67. In the said case, this Court was examining the final

order dated 10th May 2017 passed by the NGT, Southern Zone,

Chennai whereby the application filed by the appellant therein

praying for a direction for closure of the common bio-medical

waste treatment facility run by respondent No.3 therein, on

the ground of alleged non-compliance of the 2006 Notification

was dismissed.

68. It will be relevant to refer to the following observations

of this Court in the said case:

“21. In exercise of power under Section 3(1) and Section 3(2)(v) of the EP Act read with Rule 5(3)(d) of the EP Rules, the Central Government issued a Notification being S.O. 804(E) dated 14-3-2017 which provides 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 Environmental Impact Notification issued thereunder. Paras 3, 4 and 5 of the said notification, read as hereunder: “(3) In cases of violation, action will be taken against the project proponent by the respective State or State Pollution Control Board under the provisions of Section 19

40 of the Environment (Protection) Act, 1986 and further, no consent to operate or occupancy certificate will be issued till the project is granted the environmental clearance. (4) The cases of violation will be appraised by respective sector Expert Appraisal Committees constituted under sub- section (3) of Section 3 of the Environment (Protection) Act, 1986 with a view to assess that the project has been constructed at a site which under prevailing laws is permissible and expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safeguards; and in case, where the finding of the Expert Appraisal Committee is negative, closure of the project will be recommended along with other actions under the law. (5) In case, where the findings of the Expert Appraisal Committee on point at sub-para (4) above are affirmative, the projects under this category will be prescribed the appropriate Terms of Reference for undertaking Environment Impact Assessment and preparation of Environment Management Plan. Further, the Expert Appraisal Committee will prescribe a specific Terms of Reference for the project on assessment of ecological damage, remediation plan and natural and community resource augmentation plan and it shall be prepared as an independent chapter in the environment impact assessment report by the accredited consultants. The collection and analysis of data for assessment of ecological damage, preparation of remediation plan and natural and community resource augmentation plan

41 shall be done by an environmental laboratory duly notified under the Environment (Protection) Act, 1986, or an environmental laboratory accredited by National Accreditation Board for Testing and Calibration Laboratories, or a laboratory of a Council of Scientific and Industrial Research institution working in the field of environment.” 22. The Notification of 2017 is a valid statutory notification issued by the Central Government in exercise of power under Sections 3(1) and 3(2)(v) of the EP Act read with Rule 5(3)(d) of the EP Rules in the same manner as the EIA Notification dated 27-1-1994 and the Notification dated 14-9- 2006. 23. Section 21 of the General Clauses Act, 1897 provides that where any Central Act or Regulations confer a power to issue notifications, orders, rules or bye-laws, that power includes the power, exercisable in the like manner, and subject to like sanction and conditions, if any, to add to, amend, vary or rescind any notification, order, rule or bye-law so issued. The authority, which had the power to issue Notifications dated 27-1- 1994 and 14-9-2006 undoubtedly had, and still has the power to rescind or modify or amend those notifications in like manner. As held by this Court in Shree Sidhbali Steels Ltd. v. State of U.P. [Shree Sidhbali Steels Ltd. v. State of U.P., (2011) 3 SCC 193] , power under Section 21 of the General Clauses Act to amend, vary or rescind notifications, orders, rules or bye-laws can be exercised from time to time having regard to the exigency.” [Emphasis supplied]

69. It can thus clearly be seen that this Court, in

unequivocal terms, held that the 2017 Notification was a valid

42 statutory notification issued by the Central Government in

exercise of power under Sections 3(1) and 3(2)(v) of the EP Act

read with Rule 5(3)(d) of the EP Rules.

70. It has been held by this Court that the said notification

was issued in the same manner as the 1994 Notification and

2006 Notification were issued. This Court in the said case

while referring to Section 21 of the General Clauses Act, 1897

held that the authority, which had the power to issue 1994

Notification and 2006 Notification undoubtedly had, and still

has the power to rescind or modify or amend those

notifications in like manner.

71. It will also be relevant to refer to the following

observations of this Court in the said case:

“30. By an Office Memorandum, being F. No. 22- 21/2020-1A III, dated 7-7-2021, the MoEF&CC issued Standard Operating Procedure (SOP) for identification and handling of violation cases under the 2006 EIA Notification. The said Office Memorandum, inter alia, reads: “The Ministry had issued a Notification number S.O. 804(E), dated the 14-3-2017 detailing the process for grant of Terms of Reference and environmental clearance in respect of projects or activities which have started the work on site and/or expanded the production beyond the limit of prior EC or changed the product mix without

43 obtaining prior EC under the EIA Notification, 2006. 2. This Notification was applicable for six months from the date of publication i.e. 14-3-2017 to 13-9-2017 and further based on court direction from 14-3-2018 to 13-4-2018. 3. Hon'ble NGT in Original Application No. 287 of 2020 in the matter of Dastak N.G.O. v. Synochem Organics (P) Ltd. [Dastak N.G.O. v. Synochem Organics (P) Ltd., 2021 SCC OnLine NGT 131] and in applications pertaining to same subject- matter in Vineet Nagar v. Central Ground Water Authority [Vineet Nagar v. Central Ground Water Authority, 2021 SCC OnLine NGT 139] , vide order dated 3-6-2021 held that “(…) for past violations, the authorities concerned are free to take appropriate action in accordance with polluter pays principle, following due process”. 4. Further, the Hon'ble National Green Tribunal in OA No. 34 of 2020 (WZ) in Tanaji B. Gambhire v. State of Maharashtra [Tanaji B. Gambhire v. State of Maharashtra, 2021 SCC OnLine NGT 961] , vide order dated 24-5-2021 has directed that “…. a proper SOP be laid down for grant of EC in such cases so as to address the gaps in binding law and practice being currently followed. The MoEF may also consider circulating such SOP to all SEIAAs in the country”. 5. Therefore, in compliance of the directions of the Hon'ble NGT a Standard Operating Procedure (SOP) for dealing with violation cases is required to be drawn. The Ministry is also seized of different categories of “violation” cases

44 which have been pending for want of an approved structural/procedural framework based on “Polluter Pays Principle” and “Principle of Proportionality”. It is undoubtedly important that action under statutory provisions is taken against the defaulters/violators and a decision on the closure of the project or activity or otherwise is taken expeditiously. 6. In the light of the above directions of the Hon'ble Tribunal and the issues involved, the matter has accordingly been examined in detail in the Ministry. A detailed SOP has accordingly been framed and is outlined herein. The SOP is also guided by the observations/decisions of the Hon'ble Courts wherein principles of proportionality and polluters pay have been outlined.” 31. The SOP formulated by the said Office Memorandum dated 7-7-2021 refers to and gives effect to various judicial pronouncements including the judgment of this Court in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati [Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157] . 32. 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.” [Emphasis supplied]

72. It can thus clearly be seen that the 2021 OM which was

quashed in JUR had also been considered and approved by

this Court in D. Swamy (supra).

45 73. This Court held that the SOP formulated by the 2021

OM refers to and gives effect to various judicial

pronouncements including the judgment of this Court in the

case of Alembic Pharmaceuticals Ltd. (supra). This Court

also held that in terms of the SOP, 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.

74. It will further be relevant to refer to the following

observations of this Court in D. Swamy (supra):

“35. It is, however, well settled that 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. A statement made by the counsel in court would not prevent the authority concerned from making amendments and/or modifications provided such amendments and/or modifications were as per the procedure prescribed by law.” [Emphasis supplied]

46 75. It can be seen that this Court in the said case

specifically observed that the observations of the Division

Bench of the Madras High Court that a one-time relaxation

was permissible, was not to be construed as a finding that

relaxation cannot be made more than once. It was held that 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. It has therefore

been held that a statement made by the counsel in court would

not prevent the authority concerned from making

amendments and/or modifications provided such

amendments and/or modifications were as per the procedure

prescribed by law.

76. It will also be relevant to refer to the following

observations of this Court in D. Swamy (supra):

“46. Ex post facto environmental clearance should ordinarily not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularisation 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

47 notifications. In a given case, the deviant industry may 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. 47. It is reiterated that the EP Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible. As observed by this Court in Electrosteel Steels [Electrosteel Steels Ltd. v. Union of India, (2023) 6 SCC 615], this Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units for their survival. 48. 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, regardless of the consequences of stopping the operations.” [Emphasis supplied]

77. It is thus clear that though this Court held that ex-post

facto EC should not ordinarily be granted, but in exceptional

circumstances they can be granted. It was held that where the

adverse consequences of denial of ex-post facto approval

outweigh the consequences of regularisation of operations by

grant of ex-post facto approval, and the establishment

concerned otherwise conforms to the requisite pollution

48 norms, ex-post facto approval should be granted. It has been

categorically held that the EP Act does not prohibit ex post

facto EC.

e. Pahwa Plastics Private Limited and Another v. Dastak NGO and Others

78. In the case of Pahwa Plastics Private Limited

(supra), also this Court was considering an appeal against an

order dated 3rd June 2021 passed by the NGT which held that

the manufacturing unit of the appellants therein which did not

have prior EC could not be allowed to operate.

79. In the said case, this Court reiterated the law as laid

down in the case of D. Swamy (supra). In order to avoid

making the judgment lengthy, I am avoiding the reproduction

of the paragraphs in Pahwa Plastics Private Limited (supra)

inasmuch as they are pari materia to the law laid down in the

case of D. Swamy (supra).

f. Judicial Discipline and Judicial Propriety

80. Having taken into consideration the judgments pressed

into service by the parties supporting and opposing recall of

the JUR, I may look at another aspect in the present matter.

49 The law with regard to judicial discipline and judicial propriety

needs no reiteration.

81. This Court in the case of Official Liquidator v.

Dayanand and Others33 has observed thus:

“89. It is interesting to note that in Coir Board v. Indira Devi P.S. [(1998) 3 SCC 259 : 1998 SCC (L&S) 806] , a two-Judge Bench doubted the correctness of the seven-Judge Bench judgment in Bangalore Water Supply & Sewerage Board v. A. Rajappa [(1978) 2 SCC 213 : 1978 SCC (L&S) 215] and directed the matter to be placed before Hon'ble the Chief Justice of India for constituting a larger Bench. However, a three-Judge Bench headed by Dr. A.S. Anand, C.J., refused to entertain the reference and observed that the two-Judge Bench is bound by the judgment of the larger Bench—Coir Board v. Indira Devai P.S. [(2000) 1 SCC 224 : 2000 SCC (L&S) 120] 90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the 33 (2008) 10 SCC 1

50 courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.”

82. It is trite law that a Bench of two-Judges is bound by

an earlier view taken by the other two-Judge Benches. If,

however, a subsequent Bench of two Judges considers the law

laid down earlier by another two-Judges Bench requires

reconsideration, the only option available to it is to refer the

matter to a larger Bench. A Bench of two-Judges cannot take

a view contrary to the view taken by a Bench of co-equal

strength.

51 83. Equally settled is the position of law that the judgment

delivered by a subsequent Bench of two Judges in ignorance

of the earlier judgment of a Bench of co-equal strength is per

incuriam in law.

84. In this respect, it will be apt to refer to the following

observations of the Constitution Bench of this Court in the

case of Dr. Shah Faesal and Others v. Union of India and

Others34, to which I (Gavai, J. as I then was) was a member:

“31. Therefore, the pertinent question before us is regarding the application of the rule of per incuriam. This Court while deciding Pranay Sethi case [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , referred to an earlier decision rendered by a two-Judge Bench in Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] , wherein this Court emphasised upon the relevance and the applicability of the aforesaid rule : (Sundeep Kumar Bafna case [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] , SCC p. 642, para 19) “19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, 34 (2020) 4 SCC 1

52 rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta.” (emphasis supplied) 32. The view that the subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the pertinent judgments was also taken by a five-Judge Bench decision of this Court in Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court [Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682 : 1991 SCC (L&S) 71] : (SCC pp. 706-07, para 43) “43. As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to “declare the law” on those subjects if the relevant provisions were not really present to its mind. But in this case Sections 25- G and 25-H were not directly attracted and even if they could be said to have been attracted in laying down the major premise, they were to be interpreted consistently with the subject or context. The problem of judgment per incuriam when actually arises, should present no difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together.”

53 85. It will also be relevant to refer to a recent judgment of

this Court in the case of Bajaj Alliance General Insurance

Company Limited v. Rambha Devi and Others35 as under:

“148. The term per incuriam is a Latin term which means “by inadvertence” or “lack of care”. English courts have developed this principle in relaxation of the rule of stare decisis. In Halsbury's Laws of England [Halsbury's Laws of England (4th Edn.) Vol. 26 : Judgment and Orders : Judicial Decisions as Authorities (pp. 297-98, Para 578).] , the concept of per incuriam was explained as under: “A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at p. 729 : (1944) 2 All ER 293 at p. 300 (CA)] ; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force [Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675 (CA)] . A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties [Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 2 WLR 672 (CA)] , or because the court had not the benefit of the best argument [Bryers v. Canadian Pacific Steamships Ltd., (1957) 1 QB 134 (CA) Per Singleton, L.J., affirmed in Canadian Pacific Steamships Ltd. v. Bryers, 1958 AC 485 (HL)] , and, as a general rule, the only

35 (2025) 3 SCC 95

54 cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority [A. & J. Mucklow Ltd. v. IRC, 1954 Ch 615 (CA), Morelle Ld. v. Wakeling, (1955) 2 QB 379 (CA), See also Bonsor v. Musicians' Union, 1954 Ch 479 (CA)] . Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.” (emphasis supplied) 149. Lord Evershed in Morelle Ld. v. Wakeling [Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 2 WLR 672 (CA)] (for short “Morelle”) explained the concept as under : (QB p. 406) “… As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.” (emphasis supplied) 150. A few months after the decision in Morelle [Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 2 WLR 672 (CA)] , the Constitution Bench of this Court in Bengal Immunity Co. Ltd. v. State of Bihar [Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 6 STC 446 : 1955 SCC OnLine SC 2 : AIR 1955 SC 661] adopted the per incuriam principle. It held that while Article 141 states that the Supreme Court's decisions are “binding on all courts within the territory of India”, this does not extend to binding

55 the Supreme Court itself, which remains free to reconsider its judgments in appropriate cases. 151. In Mamleshwar Prasad v. Kanhaiya Lal [Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232] , reflecting on the principle of per incuriam, this Court speaking through Krishna Iyer, J. held thus : (SCC p. 235, para 7) “7. Certainty of the law, consistency of rulings and comity of courts—all flowering from the same principle—converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.” (emphasis supplied) 152. In A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372] , the Constitution Bench of this Court made the following observations : (SCC p. 652, para 42) “42. It appears that when this Court gave the aforesaid directions on 16-2-1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar case [State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1 : AIR 1952 SC 75] . See Halsbury's Laws of England, 4th Edn., Vol. 26, p. 297, para 578 and p. 300, the relevant Notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn.,

56 pp. 128 and 130; Young v. Bristol Aeroplane Co. Ltd. [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 (CA)] Also see the observations of Lord Goddard in Moore v. Hewitt [Moore v. Hewitt, 1947 KB 831] and Nicholas v. Penny [Nicholas v. Penny, (1950) 2 KB 466] . “Per incuriam” are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle Ltd. v. Wakeling [Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 2 WLR 672 (CA)] . Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. [State of Orissa v. Titaghur Paper Mills Co. Ltd., 1985 Supp SCC 280 : (1985) 60 STC 213] We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.” 153. In MCD v. Gurnam Kaur [MCD v. Gurnam Kaur, (1989) 1 SCC 101] , a three-Judge Bench of this Court held that : (SCC p. 110, para 11) “11. … A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.” 154. In Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Commr. [Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Commr., (1990) 3 SCC 682 : 1991 SCC (L&S) 71] , a five-Judge Bench of this Court said the following in the context of the principle of per incuriam for

57 ignoring statutory provisions : (SCC pp. 706-07, para 43) “43. As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to “declare the law” on those subjects if the relevant provisions were not really present to its mind. But in this case Sections 25- G and 25-H were not directly attracted and even if they could be said to have been attracted in laying down the major premise, they were to be interpreted consistently with the subject or context. The problem of judgment per incuriam when actually arises, should present no difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together.” (emphasis supplied) 155. In N. Bhargavan Pillai v. State of Kerala [N. Bhargavan Pillai v. State of Kerala, (2004) 13 SCC 217 : 2005 SCC (Cri) 142] , a two-Judge Bench speaking through Arijit Pasayat, J. noted that a judgment cannot be treated as a binding precedent, if it fails to notice a specific statutory bar : (SCC pp. 223-24, para 14) “14. Coming to the plea relating to benefits under the Probation Act, it is to be noted that Section 18 of the said Act clearly rules out application of the Probation Act to a case covered under Section 5(2) of the Act. Therefore, there is no substance in the accused-appellant's plea relating to grant of benefit under the Probation Act. The decision in Bore Gowda case [Bore Gowda v. State of Karnataka, (2000) 10 SCC 260 : 2000 SCC (Cri) 1244] does not even indicate that Section 18 of the

58 Probation Act was taken note of. In view of the specific statutory bar the view, if any, expressed without analysing the statutory provision cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. Looked at from any angle, the appeal is sans merit and deserves dismissal which we direct.” 156. In State of M.P. v. Narmada Bachao Andolan [State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875] , this Court reiterated : (SCC p. 680, para 67) “67. Thus, “per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.” 157. Subsequently, in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356] this Court observed : (SCC p. 357) “A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a latter case. In exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of

59 judgment “per incuriam”. It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam.” 158. In State of Bihar v. Kalika Kuer [State of Bihar v. Kalika Kuer, (2003) 5 SCC 448] , the legal dilemma was noted as under : (SCC p. 454, para 10) “10. … Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways — either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits.” 159. In Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] , the Court expanded the definition of per incuriam in the Indian context and noted that : (SCC p. 642, para 19) “19. … A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta.” (emphasis in original) 160. In a recent decision in Shah Faesal v. Union of India [Shah Faesal v. Union of India, (2020) 4 SCC 1], a five-Judge Bench of this Court reiterated that the principle of per incuriam only applies on the ratio of the case.

60 161. After having examined the above decisions, when dealing with the ignorance of a statutory provision, we may bear in mind the following principles. These may not however be exhaustive: 161.1. A decision is per incuriam only when the overlooked statutory provision or legal precedent is central to the legal issue in question and might have led to a different outcome if those overlooked provisions were considered. It must be an inconsistent provision and a glaring case of obtrusive omission. 161.2. The doctrine of per incuriam applies strictly to the ratio decidendi and does not apply to obiter dicta. 161.3. If a court doubts the correctness of a precedent, the appropriate step is to either follow the decision or refer it to a larger Bench for reconsideration. 161.4. It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam. In exceptional instances, where by obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply.”

86. Applying the aforesaid principles, let me examine the

present case.

87. This Court passed JUR on the ground that in view of

the law laid down in the cases of Common Cause (supra),

Alembic Pharmaceuticals Limited (supra) and Electrosteel

Steels Limited (supra), ex-post facto EC is not at all

61 permissible and therefore 2017 Notification and 2021 OM are

not sustainable in law.

88. As already discussed hereinabove, though this Court

in JUR has rightly referred to paragraph 125 of Common

Cause (supra) to hold that prior EC is necessary even for the

renewal of a mining lease and that the concept of an ex-post

facto or retrospective EC is completely alien to environmental

jurisprudence including 1994 Notification and 2006

Notification, it appears that paragraph 10, sub-para (5) of

paragraph 188 and paragraph 227 of the Common Cause

(supra), were not brought to the notice of this Court.

89. A perusal of the aforesaid paragraphs, not brought to

the notice of this Court, would clearly reveal that in the said

case though after the CEC Report, the mining activities were

suspended, the leaseholders were permitted to apply for

statutory clearances and thereafter move the Court for

modification and the Court had directed the compensation to

be paid for illegal or unlawful mining. Specifically in paragraph

227, this Court had permitted the leaseholders to restart their

mining operations only after compliance with the statutory

62 requirements and full payment of compensation and other

dues under the relevant rules.

90. It is thus clear that the Court, in case of mining

leaseholders who had no EC, had suspended the mining

operations, and permitted them to apply for EC and only upon

obtaining the EC and payment of compensation, they were

permitted to restart mining operations. The contention that

the EC would be valid from the date on which the application

made by the leaseholders was, however, rejected. In that view

of the matter, I have no hesitation in holding that the judgment

of this Court in the case of Common Cause (supra) cannot be

considered a precedent to hold that no ex-post facto EC can

be granted.

91. Insofar as the judgment in the case of Alembic

Pharmaceuticals Limited (supra) is concerned, this Court,

in JUR, rightly relied on paragraphs 12, 21 and 23 of the

Alembic Pharmaceuticals Limited (supra), however,

paragraphs 24 to 43 thereof were not brought to the notice of

this Court.

92. As already discussed hereinabove, after considering

various aspects of the matter and the judgment of this Court

63 in the case of Lafarge Umiam Mining (P) Ltd. (supra), this

Court in Alembic Pharmaceuticals Limited (supra) adopted

a balanced approach and set aside the directions of NGT for

revocation of ECs. Needless to state that in the said case also,

ECs were granted after the projects were completed and

became operational.

93. Insofar as the judgment in the case of Electrosteel

Steels Limited (supra) is concerned, this Court, in JUR,

rightly referred to paragraph 72 of Electrosteel Steels

Limited (supra), however, paragraphs 73 to 87 thereof were

not brought to the notice of this Court.

94. In the said case, this Court specifically in paragraph 75

held that the EP Act does not prohibit the ex-post facto EC. If

the Court that delivered the JUR was of the view that the said

finding in paragraphs 74 and 75 of Electrosteel Steels

Limited (supra) does not lay down the correct position of law,

the only option available to the Court was to refer the matter

to a larger Bench.

95. Further, the judgments of this Court in the cases of D.

Swamy (supra) and Pahwa Plastics Private Limited (supra)

were not brought to the notice of this Court.

64 96. In the said two cases, this Court has clearly upheld the

2017 Notification and 2021 OM. The view taken in JUR,

however, is totally contrary to the view taken in D. Swamy

(supra) and Pahwa Plastics Private Limited (supra). As

such, I am of the considered view that the JUR is per incuriam

to the decisions of this Court in D. Swamy (supra) and Pahwa

Plastics Private Limited (supra).

97. At this stage, it is also pertinent to note the

observations made in JUR, in paragraph 27, which have

already been reproduced by me in paragraph 15.

98. It can be seen that this Court, relying on the provisions

of Section 15 of the EP Act held that even if the penalty was

paid by the project proponent, it would not regularise the

project.

99. It will be relevant to refer to Section 15 of the EP Act,

which reads thus:

“15. Penalty for contravention of provisions of Act, rules, orders and directions.—(1) Where any person contravenes or does not comply with any of the provisions of this Act or the rules made or orders or directions issued thereunder for which no penalty is provided, he shall be liable to penalty in respect of each such contravention which shall not be less than ten thousand rupees but which may extend to fifteen lakh rupees.

65 (2) Where any person continues contravention under sub-section (1), he shall be liable to additional penalty of ten thousand rupees for every day during which such contravention continues.”

100. A bare perusal of Section 15 of the EP Act would reveal

that it deals with the aspect of penalty alone. Neither does it

permit nor prohibit the regularization of the underlying

project. Thus, the observations of the two-Judges Bench in

JUR that perusal of the provisions contained in Section 15 of

the EP Act, shows that even after the payment of penalty if the

project is under construction, the same has to be stopped and

demolished, and even if the operation has already commenced,

the same has to be stopped and demolished, does not correctly

interpret the provisions of Section 15 of the EP Act.

101. Further, since the JUR has not correctly followed the

judgments in the cases of Common Cause (supra), Alembic

Pharmaceuticals Limited (supra) and Electrosteel Steels

Limited (supra), and has not noticed various paragraphs in

the aforesaid judgments which could have persuaded it to take

a different view and since the JUR has not taken note of the

judgments in the cases of D. Swamy (supra) and Pahwa

Plastics Private Limited (supra), the present review petition

66 could have been allowed on these very grounds, however, I

deem it fit to also examine the effects of JUR, if it is not

recalled.

g. Effects of JUR

102. In paragraph 27 of JUR, this Court observed that even

after the payment of penalty, if the project is under

construction, the same has to be stopped and demolished and

even if operation has already commenced, the same has to be

stopped and demolished.

103. As already observed by me hereinabove, the 2017

Notification and 2021 OM permit grant of EC only where the

projects are otherwise permissible in law. They specifically

provide that wherever the project is not permissible in law, the

same will have to be demolished or closed. It further provides

that during appraisal after examination if it is found that even

though the project may be permissible but not

environmentally sustainable in its present

form/configuration/features, then the project shall be directed

to be modified so that the project could be environmentally

sustainable. However, if it is not considered appropriate to

67 issue EC, the project will have to be directed to be

demolished/closed.

104. Huge penalties have also been provided in case of

violation. It will not be out of place to mention that the

2021 OM was issued on the directions issued by the NGT in

the case of Tanaji B. Gambhire (supra).

105. The Union of India has placed before the Bench a list

of the projects undertaken by the Central Government, State

Government, Public Undertakings which are pending

consideration before the Government at the Central as well as

State Level. At the Central Government level, 24 projects

involving the expenditure to the tune of Rs.8,293 crore are

pending. At the State level, 29 projects worth Rs.11,168 crore

are pending.

106. It is contended by the learned counsel supporting the

recall of the judgment that in view of the 2021 OM, various

projects had been started. It is submitted that in most of the

projects, the requisite formalities including EIAs were also

complete and many of the projects were waiting for final EC.

However, on account of the interim order of stay passed by this

Court in the present proceedings dated 2nd January 2024, EC

68 could not be granted. It is, therefore, submitted that if the JUR

is not recalled, it will have devastating effects inasmuch as

various completed/near-completion projects will have to be

demolished.

107. A perusal of the list produced would reveal that out of

the projects which will be adversely affected by the JUR, some

of the projects are concerning construction of

hospitals/medical colleges/airports and some are with regard

to common effluent treatment plants.

108. It can thus be seen that if the JUR is not recalled, it

will result in demolition of various buildings/projects

constructed out of public exchequer to the tune of nearly Rs.

20,000 crore. I may give only three instances of the same.

109. The first one is with regard to AIIMS Medical College

and Hospital constructed in the State of Odisha. The college

and the hospital buildings constructed there are having a

capacity of approximately 962 beds which will have to be

demolished on account of the JUR.

110. The second one is with regard to a greenfield airport

constructed in Vijayanagar in the State of Karnataka.

69 111. The third one is with regard to common effluent

treatment plants. The purpose of an effluent treatment plant

is to remove the pollutants from the sewage water and throw

clean water into the streams. The question is whether

demolition of such effluent treatment plants, constructed

using huge public exchequer, would be conducive to the

protection of environment or against it?

112. I, therefore, ask a question to myself as to whether it

would be in the public interest to demolish all such projects

and permit the money spent from the pocket of public

exchequer to go in the dustbin?

113. I clarify that I am only considering the effect of the JUR

on the projects being undertaken by the Central Government,

State Government, Public Undertakings etc. Needless to state

that the effect on the projects undertaken by the private

individuals/entities may be manifold.

114. As submitted by Shri Rohatgi for the review petitioner-

CREDAI, in certain cases, when the projects commenced, EC

was not necessary taking into consideration the size of the

project. However, subsequently, EC became necessary on

account of change in municipal regulations etc., which

70 permitted higher FSR thereby bringing a project in the

category of the ones included in the Schedule and requiring an

EC. The effect of JUR in such cases would also be devastating.

115. At the cost of repetition, I state that even in accordance

with the 2017 Notification and 2021 OM, an EC can be granted

only in respect of the projects which are otherwise permissible

in law.

116. As already discussed hereinabove, even these

notifications do not permit an EC to be granted in respect of

the projects which are not permissible under law. As such, if

the project proponents apply for an EC in respect of projects

which are permissible in law, they would be entitled to get the

EC. However, such projects will now have to be first

demolished since they did not have the EC initially, but since

these projects are otherwise permissible in law, the project

proponents would be entitled to apply for an EC and upon

obtaining such an EC, they would have to again construct the

said project. The question, therefore, is whether such a modus

operandi of demolition and re-construction would be in the

larger public interest or would in fact be counter-productive to

the public interest?

71 117. I am, therefore, of the considered view that the effect of

JUR would be that though projects, such as the ones referred

to hereinabove, which are otherwise permissible in law, and

for which the project proponents would be entitled to apply for

an EC, they would have to be demolished and only thereafter,

upon obtaining the EC, the project proponents can be

permitted to construct the project again.

118. No doubt that the argument on behalf of the original

writ petitioners that if the Government/PSU and the private

individuals have acted contrary to law, then they should face

the consequences thereof is very attractive at the first blush.

However, it is to be noted that the 2021 OM came to be issued

on the directions passed by the NGT. If the Government, public

undertakings and the private individuals on the basis of 2021

OM have taken steps for obtaining EC, can they now be

deprived of the benefits under the said OM? The answer surely

has to be in the negative.

119. Another anomalous situation that has arisen is that for

all such ECs which have been granted prior to the date of JUR,

the underlying projects will be protected whereas all such

projects wherein though all requirements in terms of 2021 OM

72 were complete, but only EC was on the verge of being granted,

but could not be granted on account of the interim order

passed by this Court dated 2nd January 2024, they will have

to suffer the consequences of demolition.

120. I may gainfully refer to the following observations of

this Court in the case of S. Nagaraj and Others v. State of

Karnataka and Another36:

“36. It is true that the Government is mainly responsible for the above unfortunate state of affairs but that should not desist this Court from revising and reviewing the said orders which have such serious consequences. It is one thing to punish the person who furnished false particulars and altogether a different thing to refuse to revise and review the orders when the correct situation and its likely consequences are brought to the notice of court. It is the duty of the court to rectify, revise and re-call its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. “Of all these things respecting which learned men dispute”, said Cicero, “there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature.” This very idea was echoed by James Madison (The Federalist, No. 51, page 352). He said: “Justice is the end of government. It is the end of the civil society. It ever has been and ever will be pursued, until it be

36 1993 Supp (4) SCC 595

73 obtained or until liberty be lost in the pursuit.”” [Emphasis supplied]

121. As already discussed hereinabove, the JUR though

considers some of the paragraphs of Common Cause (supra),

Alembic Pharmaceuticals Limited (supra) and Electrosteel

Steels Limited (supra), various relevant paragraphs of these

judgments which would have had a direct bearing on the JUR

had not been brought to the notice of this Court and

accordingly not considered by this Court. Apart from that, the

law laid down in JUR is totally in conflict with the law laid

down in D. Swamy (supra) and Pahwa Plastics Private

Limited (supra).

122. At the cost of repetition, I reiterate that a two-Judges

Bench is bound by an earlier judgment of another two-Judges

Bench, and if the Bench is not in agreement with the same,

the only option available to it is to refer it to a larger Bench.

123. Not only that, as stated hereinabove, if the JUR is not

recalled, it will have serious consequences in terms of

demolition of projects which are either completed or about to

be completed in the near future and which are of vital public

importance constructed out of the public exchequer.

74 124. As already observed hereinabove, if JUR is continued

to operate, thousands of crores of rupees would go in waste.

125. In any case, both the 2017 Notification and 2021 OM

provide for imposition of huge penalties. As such, the penalties

have a deterrent effect and the same takes care of heavily

penalising the errant builder/developer while allowing

operation of several projects which are otherwise permissible

in law.

126. In fact, if the JUR is permitted to operate rather than

protecting the environment, it would result in creating even

more pollution. I say so because if such large number of

buildings/projects which have been completed or are near

completion are demolished and they could be reconstructed

shortly thereafter after obtaining EC as they were otherwise

permissible; it would result in nothing but creating more

pollution which could not have been the intention of the JUR.

127. I, therefore, find that in the present case, a balanced

approach as was adopted by this Court in the cases of Lafarge

Umiam Mining (P) Ltd. (supra), Alembic Pharmaceuticals

Limited (supra) and Electrosteel Steels Limited (supra), to

75 which I have already referred to hereinabove, needs to be

taken.

128. In this respect, I may also gainfully refer to two of the

recent judgments of this Court in the cases of Municipal

Corporation of Greater Mumbai and Others v. Pankaj

Babulal Kotecha and Others37 and Bindu Kapurea v.

Subhashish Panda and Others38.

h. Municipal Corporation of Greater Mumbai and Others v. Pankaj Babulal Kotecha and Others

129. In the case of Municipal Corporation of Greater

Mumbai (supra), a water body known as the Khajuria Lake

situated in Kandivali (West), Mumbai which was in existence

for over 100 years, was obliterated for the redevelopment of a

theme park.

130. It was the contention of the Municipal Corporation of

Greater Mumbai (appellant therein) that the lake was in an

unused and bad condition, so much so that it was treated as

a garbage disposal area. The Municipal Corporation, therefore,

thought it appropriate to use it for beautification and

conversion into a recreational space. The project was,

37 2025 SCC OnLine SC 1263 38 2025 INSC 784

76 accordingly, completed transforming the same into

recreational space comprising the planned green cover,

musical water fountain and recreational amenities and it was

inaugurated for public use in December 2011. On publication

of a news report about it, public-spirited individuals filed a writ

petition on 29th November 2012 before the Bombay High

Court.

131. During the pendency of the said petition, the

concerned Collector had issued post-facto sanction on 10th

February 2014 approving the project. The High Court vide

judgment and order dated 3rd August 2018 allowed the writ

petition. Aggrieved thereby, the Municipal Corporation filed an

appeal by way of special leave before this Court.

132. It will be relevant to refer to the following observations

of this Court in the said case:

“15. As regards the current ecological value, the photographic evidence placed before us vividly illustrates the Subject Property as a verdant, well- maintained urban oasis replete with numerous mature trees and recreational facilities actively utilized by the community across all demographic segments. It bears particular emphasis that we are adjudicating this appeal in 2025, nearly fifteen years after the park became functional. During this extended temporal span, an entire generation of children has grown up with this green space as an

77 integral component of their daily existence, whilst the trees planted during the initial beautification have themselves matured into substantial specimens that now contribute significantly to the local ecosystem. The park serves as a vital recreational nucleus for children, offering safe spaces for play and physical activity; for senior citizens, providing dedicated areas for walking and social interaction; and for families, creating opportunities for community engagement and leisure. 16. The recreational park presently delivers substantial public benefits that cannot be overlooked. It provides an essential green space in an increasingly concretized urban environment, with trees and other foliage contributing significantly to oxygen generation, air purification, and microclimate regulation. The ornamental water features, such as the fountain, though admittedly not equivalent to a natural water body, nonetheless contribute to biodiversity. 17. Be that as it may, the implementation of the High Court's direction at this juncture would engender consequences that contravene the very environmental principles it seeks to uphold. The demolition would necessitate the removal of numerous trees, causing immediate environmental degradation requiring decades to remediate. Additionally, the expenditure of approximately Rs. 5 crores of public funds would be rendered nugatory, with further substantial public expenditure required for the proposed restoration. Such an outcome would create a paradox wherein environmental restoration results in greater ecological harm than the original transformation—a classic case of counterproductive remedial intervention. Most importantly, given the absence of any natural catchment area as aforenoted, we are constrained to observe that even if a pond were to be recreated, its sustainability and maintenance would remain highly questionable, with the distinct possibility of such

78 stagnant water body becoming health hazards for the local populace, particularly during the monsoon seasons when such properties are prone to becoming breeding grounds for disease-carrying vectors. 18. Beyond these substantive aspects, the Collector's post facto sanction of 2014 merits separate consideration. The High Court found this sanction to be procedurally deficient and contradictory— attempting to validate an unauthorized construction yet simultaneously prohibiting the very land use change that had occurred. In this specific context, we observe that the larger question for adjudication before us transcends the validity of this belated approval. Even assuming the sanction's invalidity, the fundamental issue remains whether restoration is feasible or desirable, given the passage of considerable time and the establishment of a functioning public amenity. The legal status of the 2014 sanction, therefore, though relevant to the question of initial authorization, cannot be determinative of the appropriate remedy at this stage. More significantly, even if there existed some irregularity or perceived illegality in the post facto sanction, such concerns have been reasonably addressed and balanced by the specific rider imposed therein restricting any change in land use. The sanction, as it stands, thus ensures that the Subject Property shall remain dedicated exclusively to recreational purposes in perpetuity. This rider provides the necessary legal safeguard and permanency to guarantee that the land may not be diverted for any other purpose, commercial or otherwise.” [Emphasis supplied]

133. It can thus be seen that this Court has observed that

the demolition of the recreational park would necessitate the

removal of numerous trees, causing immediate environmental

79 degradation requiring decades to remediate. It was further

observed that the expenditure of approximately Rs. 5 crore of

public funds would be rendered nugatory, with further

substantial public expenditure required for the proposed

restoration. This Court observed that such an outcome would

create a paradox wherein “environmental restoration” results

in greater ecological harm than the original transformation.

This Court, thereafter, considered it a classic case of

counterproductive remedial intervention.

134. This Court further observed that even if there existed

some irregularity or perceived illegality in the post

facto sanction by the concerned Collector, such concerns have

been reasonably addressed and balanced by the specific rider

imposed therein restricting any change in land use. As a

result, the sanction in such terms ensured that the subject

property shall remain dedicated exclusively to recreational

purposes in perpetuity.

135. I am, therefore, of the considered view that the

aforesaid observations in the said case are aptly applicable to

the facts of the present case as well.

80 i. Bindu Kapurea v. Subhashish Panda and Others

136. Recently, a coordinate Bench of this Court in the case

of Bindu Kapurea (supra) had found the conduct of some of

the officials of the Delhi Development Authority in clear and

flagrant violation of this Court’s order dated 9th May 1996

passed in WP(C) No.4677 of 1985.

137. It will be relevant to refer to some of the observations

made by this Court in the said case, which read thus:

“19. Having said that, it must be emphasised that while the misadventure undertaken by the errant officials of the DDA was in clear and flagrant contravention of this Court’s orders, the underlying objective—namely, to facilitate improved access through broader approach roads for CAPFIMS and other public institutions—appears, does not seem to be in bad faith and certainly not to defy the authority of this Court. The Court is conscious of the distinction between mala fide abuse of power and genuine administrative misjudgement, and we are inclined to deem that the present instance falls within the latter category. 20. We say so because, as a Constitutional Court, it often becomes our solemn duty to incline towards decisions that, in the long run, subserve the larger public interest. In a scenario such as the present, where competing claims of public interest are at play— some capable of being fulfilled and others falling short of expectations—this Court is guided in its adjudication by the principles of constitutional morality. Our decision in such circumstances ought to be grounded in the constitutional values of equality, social justice, and economic justice, which lie at the very nucleus of our Constitution. ……..

81 23. Given these noble objectives, it is imperative to recognise the significance of an institution like CAPFIMS, particularly in the lives of families of personnel belonging to the lower ranks of the paramilitary forces. These are the kith and kin of individuals who routinely place themselves at risk to protect the nation and defend its borders under extremely harsh conditions. We are of the considered view that such individuals, who remain largely voiceless and without representation in proceedings such as the present one, stand to benefit directly from the construction of an improved approach road to CAPFIMS. Better road access would enable emergency vehicles, including ambulances, to reach the facility swiftly, thereby potentially saving the lives of those who routinely safeguard ours. In the discharge of our judicial function, this overarching public interest weighs heavily upon the conscience of this Court. ……….. 26. That being so, having holistically considered the matter from multiple dimensions, this Court finds itself confronted with a difficult juxtaposition—between the imperative of much- needed development and improved access to medical facilities on the one hand and the undeniable and pervasive harm caused to the environment on the other. In this vein, we must remain mindful that the establishment of CAPFIMS, the felling of trees, and the construction of approach roads are now fait accompli. While it may be theoretically possible to contemplate a reversal of these actions, such a course is practically untenable. In our view, the die is cast, and what is done cannot now be undone—any refusal to put institutions like CAPFIMS to optimal use or to undo road construction at this stage risks not only undermining public interest but also squandering significant public resources.” [Emphasis supplied]

82 138. It can thus be seen that though in the said case this

Court found that the officers of the DDA were in flagrant

contempt of this Court, it rather than choosing to direct

demolition of the project already undertaken/constructed

adopted a balanced approach in the larger public interest.

139. Finally, in the said case, this Court directed remedial

measures to be taken to ensure compensatory afforestation on

185 acres of land identified and proposed to be used towards

compensatory afforestation.

140. I am in complete agreement with the aforesaid

observations of this Court in the case of Bindu Kapurea

(supra), to the effect that demolition of the projects already

completed would rather than being in public interest would

result in throwing the valuable public resources in dustbin.

IV. CONCLUSION

141. Taking into consideration all these aspects of the

matter, I am inclined to allow the review petition.

142. The judgment and order dated 16th May 2025 (JUR) is

recalled. The writ petitions and the appeal are restored to file.

83 143. The Registry is directed to place the matter before the

Chief Justice of India on the administrative side for obtaining

the necessary orders.

….................CJI (B.R. GAVAI)

NEW DELHI; NOVEMBER 18, 2025.

84 REPORTABLE

IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION

REVIEW PETITION (CIVIL) No. OF 2025 (Arising out of R.P. (C) Diary No. 41929 of 2025) IN WRIT PETITION (CIVIL) NO. 1394 OF 2023

CONFEDERATION OF REAL ESTATE DEVELOPERS OF INDIA (CREDAI) PETITIONER(S)

VERSUS

VANASHAKTI & ANR. RESPONDENT(S)

JUDGMENT

UJJAL BHUYAN, J.

I have carefully gone through the judgment

penned by the learned Chief Justice (referred to hereinafter

as the review judgment) whereby he has allowed the review

petition and has recalled the judgment and order dated

16.05.2025 passed by this Court in Writ Petition (Civil) No.

1394 of 2023 (Vanashakti Vs. Union of India), Writ Petition (Civil) No. 118 of 2019, Writ Petition (Civil) No. 115 of 2024

and Civil Appeal Nos. 381-382 of 2025 (collectively referred to

hereinafter as the ‘Vanashakti judgment’). With respect I am

unable to persuade myself to agree to the line of reasoning

and conclusions reached by the learned Chief Justice.

According to me, no case for review has been made out and,

therefore, the review petition is liable to be dismissed.

2. The review petition is being allowed on two

grounds. Firstly, according to the review judgment,

Vanashakti has not correctly followed and has also not

noticed various paragraphs of the following judgments which

could have persuaded the Bench to take a different view:

Common Cause Vs. Union of India1, Alembic Pharmaceuticals

Limited Vs. Rohit Prajapati2 and Electrosteel Steels Limited Vs.

Union of India3. The review judgment also says that

Vanashakti has not taken note of the judgments passed by a

co-ordinate Bench of this Court in D. Swamy Vs. Karnataka

State Pollution Control Board4 and Pahwa Plastics Private 1 (2017) 9 SCC 499 2 (2020) 17 SCC 157 3 (2023) 6 SCC 615 4 (2023) 20 SCC 469

2 Limited Vs. Dastak NGO5 where the 2017 Notification and the

2021 OM have been upheld. Therefore, the judgment in

Vanshakti is per incuriam the decisions in D. Swamy and

Pahwa. The second ground on which Vanashakti is being

reviewed is that impact of the said judgment would entail

enormous economic cost to the country and that it would

create more pollution due to demolition of projects if the

Vanashakti judgment is given effect to.

3. I am afraid both these grounds are not at all

tenable and certainly cannot form the basis for recalling of

the judgment in Vanashakti.

4. I say so for the reasons mentioned hereunder.

5. Confederation of Real Estate Developers of India

has filed Review Petition (Civil) Diary No. 41929 of 2025 in

Writ Petition (Civil) No. 1394 of 2023. Be it stated that the

Confederation of Real Estate Developers of India (briefly

‘CREDAI’ hereinafter) had filed an interlocutory application in

Writ Petition (Civil) No. 1394 of 2023, being I.A. No. 24981 of

2024, seeking impleadment in the hearing of the aforesaid

5 (2023) 12 SCC 774

3 writ petition. The prayer for impleadment was allowed vide

order dated 02.02.2024. Aggrieved by the Vanashakti

judgment, CREDAI has filed the instant review petition

seeking the following reliefs:

(a) pass an order allowing the present review petition

seeking review of the judgment and order dated

May 16, 2025 passed by this Court in Writ

Petition (C) No. 1394 of 2023;

(b) pass such other order or orders as this Hon'ble

Court may deem fit and proper in the interest of

justice.

6. I will advert to the grounds of review at a

subsequent stage.

7. It may be mentioned that a number of miscellaneous

applications have been filed in Writ Petition (Civil) No. 1394 of

2023. But there is only one review petition i.e. the review

petition filed by CREDAI. In para 2 of the review judgment, it

has been mentioned that though certain other review petitions

including one filed by Union of India and various interlocutory

applications for modification/clarification of the Vanashakti

4 judgment are pending but the review petition filed by CREDAI

would be heard and decided first, I have checked the record

made available to me and I find that the review petition filed by

CREDAI is the only review petition filed for review of the

Vanashakti judgment. Though Ms. Aishwarya Bhati, learned

Additional Solicitor General of India had briefly appeared

during the hearing and had supported the review petitioner and

the other applicants, Union of India has not filed any review

petition for review of the Vanashakti judgment.

8. Since Mr. Tushar Mehta, learned Solicitor General

of India and Mr. Kapil Sibal, learned Senior Counsel had

addressed the Court supporting the review of Vanashakti

judgment, it would be appropriate to refer to their

miscellaneous applications. Mr. Mehta has appeared on

behalf of M/s. Sail Refractory Company Limited, a subsidiary

company of Steel Authority of India Limited, which has filed

Miscellaneous Application (Diary) No. 46855 of 2025 in Writ

Petition (Civil) No. 1394 of 2023. Prayer made in this

miscellaneous application is as under:

5

(a) clarify and declare that the benefit of protection

extended to Environmental Clearances already

granted under the 2017 Notification in the

judgment dated 16.05.2025 in Vanashakti Vs.

Union of India (2025 INSC 718), includes and

applies to the applicant’s project, wherein the

Environmental Clearance stood deemed to have

been granted under Paragraph 8 of the EIA

Notification, 2006;

(b) in the alternative, and without prejudice to the

foregoing, direct that the said protection be

extended to the applicant, who has completed all

obligations from its end and whose proposal, the

Expert Appraisal Committee (EAC), has already

recommended for grant of Environmental

Clearance and only a formal communication was

pending from the end of the regulatory authority;

(c) pass such other or further orders as this Hon’ble

Court may deem fit and proper in the facts and

circumstances of the present case and in the

6 interest of justice, equity and to prevent

irreparable harm to the applicant.

8.1. Similarly, Mr. Sibal has appeared on behalf of

the applicant Karnataka State Industrial Infrastructure

Development Corporation which has filed Miscellaneous

Application (Diary) No. 52650 of 2025 in Writ Petition (Civil)

No. 1394 of 2023 seeking the following reliefs:

(a) clarify the judgment dated 16.05.2025 passed by

this Court in W.P. (C) No. 1394/2023, titled

Vanashakti vs. Union of India, to the extent that

it does not apply to the facts and circumstances

of the present case;

(b) modify and/ or clarify the judgment dated May

16, 2025 passed by this Court in W.P. (C) No.

1394/2023, titled Vanashakti vs. Union of India,

to the extent of granting an exemption/

permitting a carve out, to the subject project of

the applicant, on terms and conditions as this

Court may deem fit and proper, in the peculiar

facts and circumstances of the present case;

7 (c) direct the Ministry of Environment, Forest and

Climate Change (M0EF&CC) to process and

decide the application of the applicant

concerning the grant of environmental clearance

to the subject project, given the special nature

and public welfare objective of the subject

project.

9. Since the review judgment has already recorded

the rival submissions made at the Bar, it is considered not

necessary to restate the same here.

10. However, I may briefly refer to the prayers made in

the different writ petitions and civil appeals which were

adjudicated by this Court in Vanashakti. Writ Petition (Civil)

No. 1394 of 2023 was filed by Vanashakti for quashing the

2021 office memorandum (OM). It also sought for a direction

to the MOEF&CC as well as to the State Environment Impact

Assessment Authorities and Sector Expert Appraisal

Committees not to process and entertain any application for

grant of ex post facto EC after 13.05.2018.

8 10.1. Writ Petition (Civil) No. 118 of 2019 was filed by

Shri Ajay S. Jajodia challenging the 2017 Notification and

seeking a direction to the respondents to produce a list of real

estate projects and project proponents who have undertaken

real estate development projects without obtaining EC under

the 2006 EIA Notification.

10.2. One Earth One Life filed Writ Petition (Civil) No.

115 of 2024 assailing the legality and validity of the 2017

Notification as well as the 2021 OM. A further direction was

sought for to restrain MOEF&CC from issuing any notification

or office memorandum permitting ex post facto EC.

10.3. Fatima and K. Bharti had filed amongst themselves

three writ petitions before the Madras High Court assailing

the 2021 OM. A Division Bench of the Madras High Court

quashed the 2021 OM but held that its decision would be

applicable prospectively. This decision of the Madras High

Court declaring that quashing of the 2021 OM would operate

prospectively has been challenged in Civil Appeal Nos. 381-

382 of 2025 by Fatima.

9

11. Before dealing with the review petition and the

aforesaid two connected miscellaneous applications, it would

be appropriate to briefly delineate the legislative and judicial

progression in the field of environmental jurisprudence

leading to the Vanashakti judgment.

12. To implement the decisions taken in the United

Nations Conference on the Human Environment held at

Stockholm in June, 1972 and to take appropriate measures

in terms of such decisions for the protection and improvement

of the environment as well as for prevention of hazards to

human beings, other living creatures, plants and property,

Parliament enacted the Environment (Protection) Act, 1986

(briefly, ‘the Environment Protection Act’ hereinafter). Section

3 deals with power of the Central Government to take

measures to protect and improve the environment. Sub-

section (1) says that subject to the provisions of the

Environment Protection Act, Central Government shall have

the power to take 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

10 abating environmental pollution. Sub-section (2) indicates the

measures in respect of which Central Government may take

steps for the aforesaid purpose. This includes clause (v) of

sub-section (2) which speaks of restriction of areas in which

any industries, operations or processes or class of industries,

operations or processes shall not be carried out or shall be

carried out subject to certain safeguards.

13. In exercise of the powers conferred by Sections 6

and 25 of the Environment Protection Act, Central

Government has made a set of rules called the Environment

(Protection) Rules, 1986 (briefly ‘the Environment Protection

Rules’ hereinafter). Rule 5 deals with prohibition and

restriction on the location of industries and the carrying on of

processes and operations in different areas. This rule lays

down several factors which may be taken into consideration

by the Central Government while prohibiting or restricting the

location of industries and carrying on of processes and

operations in different areas.

14. This Court had expressed its concern for

environment even prior to enactment of the Environment

11 Protection Act. Through its judgments, in cases after cases, a

consistent line of jurisprudence has been developed by this

Court to protect the environment by arresting ecological

degradation. Principles, such as, precautionary principle,

polluter pays principle, sustainable development and inter-

generational equity are now firmly ensconced in our

constitutional law. Not only it is the fundamental duty of

every citizen to protect the environment under Article 51A(g)

of the Constitution of India, right to have a safe environment

is now a facet of Article 21. This Court through its repeated

judicial interventions has declared that right to clean air and

a pollution free environment is a fundamental right of every

person living in India which is traceable to Article 21 of the

Constitution of India. It is not necessary to refer to the entire

gamut of case laws on the strength of which environmental

jurisprudence has evolved in our country.

15. Such has been the impact of these judgments that

citizens cutting across all stratas and regions are now active

stakeholders in environmental discourse and in the mission

12 to protect the environment all over the country, not confined

to the academia and policy makers.

16. After inviting objections from the public and after

considering such objections, Government of India in the

Ministry of Environment and Forests issued Environment

Impact Assessment Notification dated 27.01.1994. This

notification was issued in exercise of the powers conferred by

sub-section (1) and clause (v) of sub-section (2) of Section 3

of the Environment Protection Act read with clause (d) of sub-

rule (3) of Rule 5 of the Environment Protection Rules. By way

of the Environment Impact Assessment Notification dated

27.01.1994 (briefly, the 1994 EIA Notification’ hereinafter),

Central Government directed that on and from the date of

publication of the said notification in the official gazette,

expansion or modernization of any activity or new project

listed in Schedule I to the notification should not be

undertaken in any part of India unless it had been accorded

environmental clearance (EC) by the Central Government in

accordance with the procedure specified in the 1994 EIA

Notification. The requirements and procedure for seeking EC

13 of projects were laid down in paragraph 2 of the said

notification. List of projects requiring EC from the Central

Government was provided in Schedule I.

17. After more than a decade, a fresh Environment

Impact Assessment Notification was issued by the M0EF&CC,

Government of India on 14.09.2006. Like the 1994

notification, here also a draft notification was first issued

which was made available to the public. Objections and

suggestions were called for from the members of the public.

All such objections and suggestions received in response to

the draft notification were duly considered by the Central

Government. Thereafter, in exercise of the powers conferred

by sub-section (1) and clause (v) of sub-section (2) of Section

3 of the Environment Protection Act read with clause (d) of

sub-rule (3) of Rule 5 of the Environment Protection Rules,

central government issued the Environment Impact

Assessment Notification dated 14.09.2006 (briefly ‘the 2006

EIA Notification’ hereinafter). This notification was issued in

supersession of the 1994 EIA Notification. As per the 2006

EIA Notification, on and from the date of its publication, the

14 required consideration of new projects or activities or the

expansion or modernization of existing projects or activities

listed in the schedule to the notification entailing capacity

addition with change in process and/or technology shall be

undertaken in any part of India only after prior EC from the

Central Government or by the State Level Environment

Impact Assessment Authority duly constituted by the Central

Government under sub-section (3) of Section 3 of the

Environment Protection Act in accordance with the procedure

specified in the 2006 EIA Notification.

17.1. Paragraph 2 of the 2006 EIA Notification speaks of

prior EC. This provision being relevant is extracted hereunder:

2. Requirements of prior Environmental Clearance (EC): The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter be referred to as the Central Government in the Ministry of Environment and Forests for matters falling under Category ‘A’ in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category ‘B’ in the said Schedule and at District level, the District Environment Impact Assessment Authority (DEIAA) for matters falling under category ‘B2’ for mining of minor minerals in the

15 said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:

(i) All new projects or activities listed in the Schedule to this notification;

(ii) Expansion, modernization or any change in the product mix or raw material mix in existing projects or activities, listed in the Schedule to this notification, resulting in capacity beyond the threshold limits specified for the concerned sector in the said Schedule, subject to conditions and procedure provided in sub-

paragraph (ii) of paragraph 7.

18. The Vanashakti judgment noticed that in the 1994

EIA Notification, the word ‘prior’ was not used. However, the

said notification provided that on and from the date of

publication of the said notification in the official gazette,

expansion or modernization of any activity, if pollution load

was to exceed the existing one, or a new project listed in

Schedule I to the said notification should not be undertaken

in any part of India unless it had been accorded EC by the

Central Government. Therefore, notwithstanding the absence

of the word ‘prior’ in the 1994 EIA Notification, the intention

was very clear in that there should be no expansion or

16 modernization of any activity or starting of any new project

without obtaining EC from the Central Government. However,

in the 2006 EIA Notification, which has been issued in

supersession of the 1994 EIA Notification and continues to

hold the field, it is categorically mandated that on and from

the date of its publication in the official gazette, no new

project or activities or expansion or modernization of existing

projects or activities listed in the Schedule to the said

notification shall be undertaken in any part of India without

obtaining prior EC from the Central Government. Thus, what

was implicit in the 1994 EIA Notification has been made

explicit in the 2006 EIA Notification. Therefore, the 2006 EIA

Notification can be said to be an improvement over the 1994

EIA Notification.

19. In Common Cause, a two-Judge Bench of this

Court was considering a batch of writ petitions filed under

Article 32 of the Constitution of India which highlighted

mining scandal of enormous proportions in the State of

Odisha. It was noticed that lessees in the districts of

Keonjhar, Sundergarh and Mayurbhanj in Odisha had

17 rapaciously mined iron ore and manganese ore because of

which there was considerable destruction of forests and

environment causing untold misery to the tribal people of the

area. The cause of action was triggered when an editor of a

newspaper from Odisha filed interlocutory applications in

T.N. Godavarman Thirumulpad Vs. Union of India (W.P. (C) No.

202 of 1995) highlighting the above issues and seeking

appropriate directions. This Court issued notice to the

Central Empowered Committee (CEC) which submitted

several reports to this Court. This Court noted the interplay

between the Environment Protection Act and the 1994 EIA

Notification on the one hand and the Mines and Minerals

(Development and Regulation) Act, 1957 on the other hand

and in the facts of that case posed two questions:

(i) What was the base year for considering the

pollution load while proposing any expansion

activity?

(ii) What was the duration for which an EC was not

necessary for an ongoing project which did not

propose any expansion? Or to put it differently,

18 what was the validity period for a no-objection

certificate from the State Pollution Control Board?

19.1. In so far the first question was concerned, this

Court on a reading of the 1994 EIA Notification was of the

view that the immediately preceding year i.e. 1993-94 would

be the base year for considering any proposal of expansion.

In so far the second question was concerned, this Court

observed that in respect of a project that had commenced

prior to 27.01.1994 i.e. the date of the 1994 EIA Notification,

an exemption from the requirement of obtaining an EC was

granted if there was no expansion and the existing pollution

load was not exceeded. But a no objection certificate was

necessary from the State Pollution Control Board for

continuing with the mining operation. In other words, in such

type of projects (including expansion of mining operations),

the activity could continue even in the absence of an EC but

that was subject to a no objection certificate from the State

Pollution Control Board.

19.2. However, this Court specifically rejected the

contention of the mining lease holders that in the absence of

19 the word ‘prior’ in the 1994 EIA notification, there was a

possibility of getting an ex post facto EC which was a signal

to the mining lease holders that obtaining an EC was not

mandatory or that if it was not obtained, the default was

retrospectively condonable. This Court after referring to its

previous decision in the case of M.C. Mehta Vs. Union of India6,

observed that the Ministry of Environment and Forests did

not intend to legalise the commencement or continuance of

mining activity without compliance to the stipulations of the

1994 EIA Notification and thereafter held as follows:

108. ……..It appears to us that the MoEF was, in a sense, cajoling the the mining leaseholders to comply with the law and the 1994 EIA Notification rather than use the stick. That the mining leaseholders chose to misconstrue the soft implementation as a licence to not abide by the requirements of the law is unfortunate and was an act of omission or commission by them at their own peril. We cannot attribute insensitivity to the MoEF or even to the mining leaseholders to environment protection and preservation, but at the same time we cannot overlook the obligation of everyone to abide by the law. That

6 (2004) 12 SCC 118

20 the MoEF took a soft approach cannot be an escapist excuse for non-compliance with the law or EIA 1994.

19.3. On behalf of the mining lease holders, it was

argued that lot of circulars were issued in connection with the

1994 EIA Notification which created confusion, vagueness

and uncertainty. These circulars provided for interim

operational guidelines. This was followed by the 2006 EIA

Notification. That apart, it was contended that for grant of EC,

a lot of time was required, much more than the international

norm. In such circumstances, it was argued that when an EC

is granted, it should have retrospective effect from the date of

application for grant of EC. This Court rejected the said

contention of the mining lease holders in the following

manner:

125. We are not in agreement with the learned counsel for the mining leaseholders. There is no doubt that the grant of an EC cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long-term impact. EIA 1994 is therefore very clear that if expansion or modernisation of any mining activity exceeds the existing pollution load, a prior EC is necessary and as already held by this Court in M.C. Mehta even for the

21 renewal of a mining lease where there is no expansion or modernisation of any activity, a prior EC is necessary. Such importance having been given to an EC, the grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment. The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant.

19.4. Thus, this Court declared in no uncertain terms

that a prior EC is necessary. Grant of ex post facto EC would

be detrimental to the environment as it could lead to

irreparable degradation of the environment. Concept of

ex post facto or retrospective EC is completely alien to

environmental jurisprudence.

19.5. In the facts of that case, this Court noted the

permissions granted by the State Government to the mining

lease holders to carry on mining as well as the no-objection

certificate issued by the State Pollution Control Board and,

thereafter, was of the view that the mining lease holders

would be entitled to the benefit of any temporary working

22 permission granted but for the illegal and unlawful mining,

compensation at the rate of 100% of the price of the mineral

was directed to be recovered from 2000-2001 onwards in

terms of Section 21(5) of the Mines and Minerals

(Development and Regulation) Act, 1957.

20. Thus, from an analysis of the decision of this Court

in Common Cause, the ratio that can be culled out is that a

prior EC is necessary. Grant of ex post facto EC would be

detrimental to the environment. Concept of ex post facto EC

is completely alien to environmental jurisprudence including

the 1994 EIA Notification and the 2006 EIA Notification. This

is the ratio. The fact that in the operative portion of the

judgment, as noticed supra, this Court had allowed the

mining lease holders to continue the mining during the

temporary permission period granted by the state authority

on payment of compensation at the rate of 100% of the price

of the mineral is not the ratio in Common Cause. That was a

relief granted to the mining lease holders in the peculiar facts

of that case which cannot be construed to be the ratio of that

decision.

23

21. Let me now turn to the 2017 Notification. It is dated

14.03.2017. The notification opens with a set of prefatory

recitals invoking statutory powers and prior administrative

and judicial history. There is no doubt that this notification

is a statutory one drawing its legitimacy from Section 3 of the

Environment Protection Act and Rule 5 of the Environment

Protection Rules. In paragraph 9 it says that MOEF&CC and

State Environment Impact Assessment Authorities were

receiving certain proposals under the 2006 EIA Notification

for grant of terms of reference and EC for projects which had

started the work on site, expanded the production beyond the

limit of environmental clearance or changed the product mix

without obtaining prior EC. With a view to protecting and

improving the quality of the environment and abating

environmental pollution, MOEF&CC was of the view that all

entities which were not in compliance with the 2006 EIA

Notification should be brought under compliance in an

expedient manner. Therefore, Government of India deemed it

essential to establish a process for appraisal of such cases,

noting that the process should be such that it deterred

violation of the provisions of the 2006 EIA Notification and

24 that the pecuniary benefit of violation and damage to

environment was adequately compensated for. Keeping the

above in view, the Central Government issued seven

directions which may be summarized as under:

(1) Projects or activities including expansion or

modernization of existing projects or activities

requiring prior EC under the 2006 EIA Notification

undertaken in any part of India without obtaining

prior EC from the competent authority shall be

considered as a case of violation of the 2006 EIA

Notification.

(2) If such projects were brought for EC after

construction had started or after expansion/

modernization/change in product mix without

prior clearance, these projects shall be treated as

cases of violation and even Category B projects

which are granted EC by the State Environment

Impact Assessment Authority shall be appraised

for grant of EC only by the Expert Appraisal

Committee and EC, if any, will be granted at the

central level.

25 (3) In cases of violation, action will be taken against

the project proponent by the respective State or by

the State Pollution Control Board under Section

19 of the Environment Protection Act. No consent

to operate or occupancy certificate will be issued

till the project is granted EC.

(4) Expert Appraisal Committee shall appraise such

cases to assess, (a) whether the project site is

permissible under the prevailing law, and (b)

whether the expansion/work can be run sustainably

under compliance with the environmental norms

with adequate environmental safeguards. If the

findings of the Expert Appraisal Committee are

negative, closure of the project will be recommended

along with other legal actions.

(5) Where the findings of the Expert Appraisal

Committee are in the affirmative, the project will

be prescribed appropriate terms of reference for

undertaking an environment impact assessment

and preparation of environment management

plan. Usually, the Expert Appraisal Committee

26 will prescribe specific terms of reference on the

assessment of ecological damage, a remediation

plan, and natural and community resource

augmentation plan, which shall be prepared by an

environmental laboratory as provided under the

Environment Protection Act.

(6) Expert Appraisal Committee shall stipulate

implementation of environmental management

plan comprising remediation plan and natural

and community resource augmentation plan

corresponding to the ecological damage assessed

and the economic benefit derived due to violation

as a condition of EC.

(7) The project proponent would be required to

submit a bank guarantee equivalent to the

amount of the remediation plan and natural and

community resource augmentation plan with the

State Pollution Control Board. The quantification

was to be recommended by the Expert Appraisal

Committee and finalized by the regulatory

authority. The bank guarantee was required to be

27 deposited prior to grant of EC. It was stated that

the same would be released after successful

implementation of the remediation plan and

natural and community resource augmentation

plan.

21.1. Paragraph 14 of the 2017 Notification is relevant.

It says that projects or activities which were in violation as on

the date of the said notification, would only be eligible to apply

for EC under the 2017 Notification and for this a window of

only six months period from the date of the said notification

was granted. Paragraph 14 reads thus:

14. The projects or activities which are in violation as on the date of this notification only will be eligible to apply for environmental clearance under this notification and the project proponents can apply for environmental clearance under this notification only within six months from the date of this notification.

21.2. Date of the 2017 Notification is 14.03.2017. The

six months window period was therefore valid till

13.09.2017.

28

22. Validity of the 2017 Notification was put to

challenge before the Madras High Court in Puducherry

Environment Protection Association Vs. Union of India7. In the

course of the hearing, learned Additional Solicitor General

appeared on behalf of the Central Government and made a

statement before the Court which is recorded in the

judgment and order dated 13.10.2017. Paragraph 4(i) of the

judgment reads thus:

4(i) With regard to precautionary principle, faced with the situation that ex post facto clearance and regularization dates have been repeatedly extended time and again by series of notifications, learned Additional Solicitor General at the bar, on instructions, submits that this impugned notification shall clearly and certainly be only a one time measure. We record this submission also…………………………………..……..

22.1. Thus, it is evident from the above that it was on

instructions that learned Additional Solicitor General

submitted before the Madras High Court that the 2017

Notification was a one-time measure only. Madras High Court

7 2017 SCC OnLine Mad 7056

29 accepted this undertaking of the Central Government and

held as under:

4(n) We are convinced that paragraphs 3,4 and 5 of the impugned notification alluded to supra coupled with the two undertakings made on instructions by learned Additional Solicitor General that (a) public hearing can be read into paragraph 5 of the impugned notification and (b) this shall certainly and clearly be a one time measure, this writ petition can be closed and disposed of recording the above submissions. We do so.

23. Therefore, Madras High Court disposed of the writ

petition and closed the challenge to the 2017 Notification on

the undertaking given by the Central Government that the

2017 Notification was a one-time measure only.

24. In Appaswamy Real Estates Limited Vs.

Puducherry Environment Protection Association 8, request

of the MOEF&CC for extending the time provided in the

2017 Notification was accepted by the Madras High

Court.

8 2018 SCC OnLine Mad 1283

30

25. Consequently, Office Memorandum dated

16.03.2018 was issued by the Central Government which

permitted the project proponents to apply under the 2017

Notification within 30 days from the date of the High Court

order. The High Court order is dated 14.03.2018. Therefore,

the 30 days further time period was till 13.04.2018.

26. The issue of ex post facto EC again confronted this

Court in Alembic Pharmaceuticals Limited (also referred to

hereinafter as ‘Alembic’). Government of India in the Ministry

of Environment and Forests had issued a circular on

14.05.2002 providing for ex post facto EC to industrial units.

National Green Tribunal (NGT), Western Zone vide judgment

and order dated 08.01.20169 declared the said circular to be

contrary to law and quashed ECs granted pursuant thereto.

Further directions were issued for closing down industrial

units which were operating without valid consent.

26.1. The issue which was adjudicated in Alembic was

whether in view of the requirement of a prior EC under the

1994 EIA Notification, a provision for an ex post facto EC to

9 OA No.66 of 2015, Rohit Prajapati Vs. Union of India

31 industrial units could be validly made by means of the

circular dated 14.05.2002 (please see paragraph 12 of

Alembic). The two-Judge Bench in Alembic examined the

1994 EIA Notification and held that there was no manner of

doubt that a prior EC was mandatory before a new project

was commenced or before undertaking any expansion or

modernization of an existing project. Absence of the

expression ‘prior’ in the 1994 EIA Notification did not make

any difference since the body of the said notification clearly

made it mandatory that no new project as per the Schedule

should be undertaken without obtaining EC. Thereafter, the

Bench declared in no uncertain terms that concept of an ex

post facto EC is in derogation of the fundamental principles

of environmental jurisprudence and is an anathema to the

1994 EIA Notification. This Court held as under:

23. The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA Notification dated 27-1-1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before

32 the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-

making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.

26.2. This Court made a wholesome analysis of the

1994 EIA Notification and observed that the detailed process

listed therein for obtaining an EC allows for minimizing the

adverse environmental impact by any industrial activity and

for improving the quality of the environment. One must

33 adopt a rationally ecological outlook towards development.

Environmental compliance should not be seen as an

obstacle to development but as a measure towards achieving

sustainable development and inter-generational equity.

Relevant portion of the said judgment is extracted

hereunder:

35. ……………………The detailed process listed out in the EIA Notification of 1994 for obtaining an EC allows for minimising the adverse environmental impact of any industrial activity and improving the quality of the environment. One must adopt an ecologically rational outlook towards development.

Given the social and environmental impacts of an industrial activity, environment compliance must not be seen as an obstacle to development but as a measure towards achieving sustainable development and inter-generational equity.

26.3. Thereafter, the Bench in Alembic addressed the

issue as to the consequences that the three industries in

Alembic faced upon their failure to obtain EC. This Court

took note of the fact that though the three industries

operated without an EC for several years after the 1994 EIA

Notification came into effect, each of them had subsequently

34 received EC including amended EC for expansion of existing

capacities. The subsequent ECs were in operation since

2002/2003. Therefore, keeping the above backdrop in mind,

this Court adopted a balanced approach and interfered with

the revocation of ECs by the NGT as well as with the

direction for closure of the industrial units. However, in view

of the fact that the three industries had evaded the legally

binding regime of obtaining EC, penalty of rupees ten crores

was imposed upon each of the three industries. In the

concluding paragraph of the judgment in Alembic, i.e. in

paragraph 43, the two-Judge Bench was categorical in

declaring that the above directions for allowing the three

industries to continue their industrial operations upon

payment of compensation was issued under Article 142 of

the Constitution of India. This portion of the judgment being

relevant is extracted hereunder for further clarity:

43. .……………………These directions are issued under Article 142 of the Constitution. Alembic Pharmaceuticals Ltd., United Phosphorous Ltd. and Unique Chemicals Ltd. shall deposit the amount of compensation with GPCB within a period of four months from the date of receipt of the certified copy of

35 this judgment. This deposit shall be in addition to the amount directed by NGT……………………………………

27. The ratio of the judgment in Alembic is that

concept of an ex post facto EC is in derogation of the

fundamental principles of environmental jurisprudence. It is

detrimental to the environment and could lead to irreparable

degradation. Ex post facto EC is an anathema to the 1994 EIA

Notification. Environment law cannot countenance the

notion of an ex post facto clearance. This is contrary to both

the precautionary principle as well as the need for

sustainable development. The directions issued by the Bench

under Article 142 of the Constitution of India imposing

penalty on the three defaulting industries and thereafter

permitting them to continue their industrial operation was in

the peculiar facts and circumstances of the case as noticed

supra. Directions issued under Article 142 of the

Constitution of India are not and cannot be the ratio of any

judgment.

28. In fact, so much has turned on ratio decidendi of a

case that it would be appropriate to briefly dilate on this

36 aspect as well. Let me go back to the basics. But before I do

that, let me dwell on the two expressions used so explicitly in

Alembic. One is ‘derogation’ and the other is ‘anathema’.

‘Derogation’ means disparagement or belittling someone or

something or the lessening or weakening of a law, authority

or power. It can also refer to a formal exemption from a law.

On a comparison of the meaning ascribed to the word

‘derogation’ in various dictionaries it can be summed up that

derogation means partial repeal or abolishing of a law;

limiting its scope or impairing its utility; it means when a rule

or a law is allowed to be ignored; something which is

considered to have no worth; an act of officially stating that

a law or a rule no longer needs to be obeyed.

28.1. In Concise Oxford English Dictionary, the word

‘anathema’ has been defined as something that one

vehemently dislikes. The word has its origin in Greek in which

language it meant ‘thing devoted to evil’. Black’s Law

Dictionary, 9th Edition, defines ‘anathema’ as an ecclesiastical

curse that prohibits a person from receiving communion (as

an ex-communication) and bars the person from contact with

37 members of the church. Therefore, the dicta in Alembic is

crystal clear: there is no concept of ex post facto EC in

environmental jurisprudence. Environment law cannot

countenance the notion of ex post facto clearance. It is simply

not acceptable.

29. A three-Judge Bench of this Court in Union of

India Vs. Dhanwanti Devi10, was adjudicating the question

as to whether the respondents were entitled to solatium and

interest under the Jammu and Kashmir Requisitioning and

Acquisition of Immovable Property Act, 1968. In that case,

an argument was advanced on behalf of the appellant that

a prior decision of this Court in Union of India Vs. Hari

Krishan Khosla11 did not provide for solatium and interest.

In that case, a three-Judge Bench had held that the

arbitrator and the court had no power to award solatium

and interest on the enhanced compensation under the Act.

This was vehemently opposed by the respondents. In

addition to the other grounds, it was contended that in

10 (1996) 6 SCC 44 11 1993 Supp (2) SCC 149

38 Satinder Singh Vs. Amrao Singh12, a three-Judge Bench of

this Court had held that from the date of dispossession till

the date of receipt of compensation it is an implied

agreement to pay interest on the value of the property.

Unless the statute specifically and expressly excluded

payment of interest and solatium, land holder would be

entitled to the interest and solatium. The three-Judge Bench

in Hari Krishan Khosla did not consider the ratio in Satinder

Singh which was also a decision of co-ordinate Bench of

three Judges. It was contended that there was no ratio in

Hari Krishan Khosla; it was only a conclusion.

29.1. It was in that context that this Court examined

the objection that Hari Krishan Khosla was neither a binding

precedent nor did it operate as a ratio decidendi to be

followed as a precedent and was per incuriam.

29.2. This Court held that it is not everything said by a

judge while giving judgment that constitute a precedent. The

only thing in a judge’s decision binding a party is the

principle upon which the case is decided. It is for this reason

12 AIR 1961 SC 908

39 that it is important to analyse a decision and isolate from it

the ratio decidendi. According to the theory of precedents,

every decision contains three basic postulates:

(i) findings of material facts, direct and inferential;

(ii) statement of the principles of law applicable to

the legal problems disclosed by the facts; and

(iii) judgment based on the combined effect of the

above.

29.3. This Court held that a decision (including

judgment) is only an authority for what it actually decides.

What is of the essence in a decision is its ratio and not every

observation found therein nor what logically follows from the

various observations made in the judgment. The enunciation

of the reason or principle on which a question before a court

has been decided is alone binding as a precedent. The

concrete decision alone is binding between the parties but it

is the abstract ratio decidendi, ascertained on a consideration

of the judgment in relation to the subject matter of the

decision, which alone has the force of law and which, when

it is clear what it was, is binding. It is only the principle laid

40 down in the judgment that is binding law under Article 141

of the Constitution of India. A deliberate judicial decision

arrived at after hearing an argument on a question which

arises in the case or is an issue constitutes the ratio. A

precedent by long recognition may mature into a stare

decisis. It is the rule deductible from the application of law to

the facts and circumstances of the case which constitutes its

ratio decidendi.

29.4. This Court explained that in order to understand

and appreciate the binding force of a decision, it is always

necessary to see what were the facts in the case in which the

decision was given and what was the point which had to be

decided. No judgment can be read as if it is a statute.

29.5. In the facts of that case, the Bench found that

there was no conflict in the ratio laid down in Satinder Singh

and in Hari Krishan Khosla. Hari Krishan Khosla was neither

per incuriam nor had the effect of overruling Satinder Singh.

30. In Jayant Verma Vs. Union of India13, a two-Judge

Bench of this Court was examining a challenge to the

13 (2018) 4 SCC 743

41 constitutional validity of Section 21-A of the Banking

Regulation Act, 1949 which interdicted reopening by courts

of a debt between a banking company and its debtor on the

ground that the rate of interest charged by the banking

company in respect of a loan transaction is excessive. On

behalf of the petitioner, one of the submissions advanced

was that this issue was decided by a learned Single Judge

of the Andhra Pradesh High Court and should be accepted.

However, it was pointed out that the aforesaid Single Judge

judgment was set aside by a two-Judge Bench of this Court

in SBI Vs. Yasangi Venkateswara Rao14. It was argued that

the above decision of this Court in Yasangi Venkateswara

Rao was per incuriam as it did not refer to any of the

judgments relied upon by the learned Single Judge of the

Andhra Pradesh High Court. No ratio decidendi was

forthcoming in the decision in Yasangi Venkateswara Rao.

30.1. It was in that context, that the two-Judge Bench

of this Court in Jayant Verma after an elaborate analysis of

the legal provisions, posed the question as to whether the

14 (1999) 2 SCC 375

42 judgment in Yasangi Venkateswara Rao was binding on it

since both the Benches were of equal strength i.e. two-Judge

Bench.

30.2. While the learned Single Bench of the Andhra

Pradesh High Court after an elaborate analysis held that

Section 21-A of the Banking Regulation Act, 1949 was

arbitrary and violative of Article 14 of the Constitution of

India besides not being a law referable to List I Entry 45 of

the Seventh Schedule to the Constitution of India, Yasangi

Venkateswara Rao without much deliberation held that

Section 21A was validly enacted. The two-Judge Bench in

Jayant Verma observed that there was no reasoning worth

the name for coming to such a conclusion. Though a very

large number of judgments were referred to and discussed

by the learned Single Judge, not a single judgment was

adverted to or discussed in Yasangi Venkateswara Rao. The

Bench thereafter posed the question as to whether the

judgment in Yasangi Venkateswara Rao was a declaration

of the law under Article 141 of the Constitution which as a

43 matter of practice, the latter Bench could not differ being a

Bench of co-ordinate strength.

30.3. It was in that context that the two-Judge Bench

in Jayant Verma referred to the authority Precedent in

English Law by Cross and Harris (4th Edition) in which ratio

decidendi was described as under:

The ratio decidendi of a case is any rule of law expressly or impliedly treated by the Judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.

30.4. The Bench also discussed the principle of per

incuriam and referred to State of M.P. Vs. Narmada Bachao

Andolan15 wherein it was stated:

65. “Incuria” literally means “carelessness”. In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis. Thus, the “quotable in law” is avoided and ignored if it is rendered in ignorance of a statute or other binding authority.

* * * * *

67. Thus, “per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a

15 (2011) 7 SCC 639

44 statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

30.5. It was thereafter that this Court in Jayant Verma

held that when there is a detailed judgment of the High

Court dealing with several authorities and it is reversed in a

cryptic fashion without dealing with any of them, the per

incuriam doctrine kicks in and the judgment loses binding

force because of the manner in which it deals with the

proposition of law in question. This Court declared that ratio

decidendi of a judgment is the principle of law adopted

having regard to the line of reasoning of the Judge which

alone binds in future cases. In the circumstances, the co-

ordinate Bench in Jayant Verma opined that the judgment

in Yasangi Venkateswara Rao could not deter them from

laying down the law on the subject.

30.6. It is another matter that in the facts of that case

and upon consideration of the legal provisions and

45 judgments, the Bench came to the same conclusion that

Section 21-A was validly enacted.

31. The next judgment is Career Institute Educational

Society Vs. Om Shree Thakurji Educational Society16. In this

case, a two-Judge Bench of this Court examined the

distinction between obiter dicta and ratio decidendi in a

judgment. The Bench referred to the decision of this Court

in Jayant Verma and held that it is the statement of the

principle of law applicable to the legal problems disclosed by

the facts which is the vital element in the decision and

operates as a precedent. The conclusion does not operate as

a precedent. The only thing in a judge’s decision which is

binding as a legal precedent is the principle upon which the

case is decided and for this reason it is important to analyse

a decision and isolate from it the obiter dicta.

31.1. The Bench also referred to an another decision of

this Court in State of Gujarat Vs. Utility Users’ Welfare 16 (2023) 16 SCC 458

46 Association17 in which case the ‘inversion test’ was implied

to identify what is ratio decidendi in a judgment. To test

whether a particular proposition of law is to be treated as

the ratio decidendi of the case, the proposition is to be

inversed i.e. to remove from the text of the judgment as if it

did not exist. If the conclusion of the case would still have

been the same even without examining the proposition, then

it cannot be regarded as the ratio decidendi of the case.

32. A five-Judge Constitution Bench of this Court in

Dr. Shah Faesal Vs. Union of India18 was examining the

challenge to two constitution orders issued by the President

of India under Article 370 of the Constitution of India. It is

not necessary to delve into the factual controversy of that

case but confine to the principle of ratio decidendi and per

incuriam as deliberated therein. The Bench highlighted

the importance of a binding decision and noted that

usually courts do not overrule the established

precedents unless there is a social, constitutional or

17 (2018) 6 SCC 21 18 (2020) 4 SCC 1

47 economic change mandating such a development. Doctrines

of precedents and stare decisis are the core values of our

legal system. They form the tools which further the goal of

certainty, stability and continuity in our legal system.

Arguably, judges owe a duty to the concept of certainty of

law. Therefore, they often justify their holdings by relying

upon the established tenets of law. The doctrine of binding

precedent is of utmost importance in the administration of

our judicial system. It promotes certainty and consistency

in judicial decisions. Judicial consistency promotes

confidence in the system. Therefore, there is the need for

consistency in the annunciation of legal principles in the

decisions of this Court.

32.1. The Bench then considered as to whether a ruling

of a co-ordinate Bench binds subsequent co-ordinate

Benches. Referring to the decision of this Court in National

Insurance Company Limited Vs. Pranay Sethi19, it has been

held that a decision rendered by a co-ordinate Bench is

binding on the subsequent Benches of equal or lesser

19 (2017) 16 SCC 680

48 strength. Thereafter, the Bench proceeded to examine

further, to what extent does a ruling of a co-ordinate Bench

binds the subsequent Bench. In that context, the Bench

referred to the earlier decision in Dhanwanti Devi and held

that a judgment can be distinguished into two parts: ratio

decidendi and obiter dictum. Ratio is the basic essence of the

judgment and the same must be understood in the context

of the relevant facts of the case. The only thing in a judge’s

decision binding a party is the principle upon which the case

is decided and for this reason it is important to analyse a

decision and isolate from it the ratio decidendi. A decision is

only an authority for what it actually decides. The concrete

decision alone is binding between the parties to the case but

it is the abstract ratio decidendi ascertained on a

consideration of the judgment in relation to the subject

matter of the decision which alone has the force of law

which, when it is clear what it was, is binding.

32.2. The Constitution Bench further delved into the

rule of per incuriam and observed that the same has been

developed as an exception to the doctrine of judicial

49 precedent. Literally, it means a judgment passed in

ignorance of the relevant statute or any other binding

authority. A decision is given per incuriam when the court

has acted in ignorance of a previous decision of its own or of

a court of a co-ordinate jurisdiction which covered the case

before it.

32.3. In the context of precedential value of a judgment

rendered per incuriam, the opinion of Justice Venkatachaliah

in the seven-Judge Bench decision of A.R. Antulay Vs. R.S.

Nayak20 was referred to. A decision rendered per incuriam

denudes the decision of precedential value. Such a decision

would not be binding as a judicial precedent. A co-ordinate

Bench can disagree with it and decline to follow it. A larger

Bench can overrule such decision.

32.4. Following the same, the Constitutional Bench in

Dr. Shah Faesal again referred to Pranay Sethi which in turn

had referred to an earlier decision to hold that a decision or

judgment can also be per incuriam if it is not possible to

reconcile its ratio with that of the previously pronounced

20 (1988) 2 SCC 602

50 judgment of a co-equal or larger Bench. The per incuriam

rule is strictly and correctly applicable to the ratio decidendi

and not to obiter dicta. The subsequent decision shall be

declared per incuriam only if there exists a conflict in the

ratio decidendi of the pertinent judgments.

33. Let me now turn to the case of Bilkis Yakub

Rasool Vs. Union of India21, in which I was also a member of

the Bench. It is not necessary to discuss the details of the

aforesaid case but to confine to the deliberations on per

incuriam and the impact of a per incuriam judgment. To be

more specific, how this judgment dealt with the issue as to

whether a subsequent co-ordinate Bench is bound by a

previous judgment rendered per incuriam?

33.1. Tersely put, the facts in Bilkis Yakub Rasool was

the grant of remission by the Government of Gujarat and the

early release of eleven convicts who were all convicted and

sentenced to life imprisonment having been found guilty of

committing heinous crimes during the large-scale riots in

Gujarat on 28.02.2002 and a few days thereafter. This

21 (2024) 5 SCC 481

51 included the brutal gang rape of the petitioner who was

pregnant at that time. A number of her close relatives were

murdered; her mother and her cousin were also gang raped

and murdered. On 10.08.2022, these convicts were granted

remission by the State of Gujarat. As pointed out above, it

was the orders of remission which was the subject of

challenge in a bunch of writ petitions in Bilkis Yakub Rasool.

33.2. On an appreciation of Section 432 of the Code of

Criminal Procedure, 1973 (Cr.P.C.), more particularly sub-

section (7) thereof, and various judgments of this Court, the

Bench was of the view that it was the State of Maharashtra

which had the jurisdiction to consider the application for

remission of the convicts as they were tried, convicted and

sentenced by the Special Court at Mumbai. Government of

Gujarat was not the appropriate government within the

meaning of the aforesaid provision. Government of Gujarat

therefore lacked jurisdiction to pass the impugned orders of

remission.

33.3. However, on behalf of the respondents, strong

reliance was placed on an order of this Court dated

52 13.05.2022 passed in Radheshyam Bhagwandas Shah Vs.

State of Gujarat22. In that case, a two-Judge Bench of this

Court had directed the State of Gujarat to consider the

application for remission filed by the convicts in terms of the

1992 policy of remission of the State of Gujarat which was

the policy prevalent on the date of conviction. The

appropriate government in the case of the convicts was the

Government of Gujarat in terms of the order of this Court

dated 13.05.2022. Therefore, the State of Gujarat had no

option but to consider the application filed by the convicts

and thereafter passed the orders of remission dated

10.08.2022.

33.4. The Bench thereafter examined the pleadings and

the decision in Radheshyam Bhagwandas Shah.

Interestingly, in Radheshyam Bhagwandas Shah, a two-

Judge Bench of this Court set aside an earlier judgment of

the Gujarat High Court dated 17.07.2019, that too without

a challenge, by which the Gujarat High Court held that since

the convict was tried in the State of Maharashtra, his case

22 (2022) 8 SCC 552

53 for premature release was required to be considered by the

State of Maharashtra and not by the State of Gujarat. The

Bench in Radheshyam Bhagwandas Shah was of the view

that it was the Government of Gujarat which was the

appropriate government and therefore the order dated

17.07.2019 was set aside. Government of Gujarat was

directed to consider the application for premature release as

per its policy dated 09.07.1992.

33.5. In Bilkis Yakub Rasool, it was noted that though

the crime was committed in the State of Gujarat, this Court

had transferred the corresponding sessions case from

Dahod, Ahmedabad to Mumbai. Special Court at Mumbai

on completion of the trial convicted the accused persons and

sentenced them to undergo rigorous imprisonment for life.

33.6. The Bench in Bilkis Yakub Rasool held that the

order of the Gujarat High Court dated 17.07.2019 could not

have been challenged and set aside in a proceeding under

Article 32 of the Constitution of India. That apart, the Bench

was of the further view that the earlier order of this Court

dated 13.05.2022 i.e. Radheshyam Bhagwandas Shah was

54 per incuriam for the reason that it failed to follow the earlier

binding judgments of this Court including that of a

Constitution Bench in Union of India Vs. V. Sriharan23, vis-

à-vis the appropriate government which is vested with the

power to consider an application for remission as per sub-

section (7) of Section 432 Cr.P.C. and that of the nine-Judge

Bench decision in Naresh Shridhar Mirajkar Vs. State of

Maharashtra24 that an order of a High Court cannot be set

aside in a proceeding under Article 32 of the Constitution.

33.7. It was in that context that the Bench in Bilkis

Yakub Rasool analysed the concepts of ratio decidendi, per

incuriam and sub silentio, though here the principle of sub

silentio may not be applicable. Incuria legally means

carelessness and per incuriam may be equated with per

ignoratium. If a judgment is rendered ignoratium of a statute

or a binding authority, it becomes a decision per incuriam.

Such a per incuriam decision would not have a precedential

value and the decision rendered per incuriam is not binding. 23

(2016) 7 SCC 1 24 AIR 1967 SC 1

55 Relevant portion of the judgment in Bilkis Yakub Rasool is

extracted as under:

153. Thus, although it is the ratio decidendi which is a precedent and not the final order in the judgment, however, there are certain exceptions to the rule of precedents which are expressed by the doctrines of per incuriam and sub silentio. Incuria legally means carelessness and per incuriam may be equated with per ignoratium. If a judgment is rendered in ignoratium of a statute or a binding authority, it becomes a decision per incuriam. Thus, a decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incuriam. Such a per incuriam decision would not have a precedential value. If a decision has been rendered per incuriam, it cannot be said that it lays down good law, even if it has not been expressly overruled vide Mukesh K. Tripathi Vs. LIC25, para 23.

Thus, a decision per incuriam is not binding.

33.8. Therefore, the Bench held that the earlier

decision in Radheshyam Bhagwandas Shah was per

incuriam. Government of Gujarat had no jurisdiction to

entertain applications for remission of the convicts as it was

25 (2004) 8 SCC 387

56 not the appropriate government within the meaning of sub-

section (7) of Section 432 Cr.P.C. Thus the orders of

remission were without jurisdiction and hence void, in

addition to various other grounds.

34. In summation, what is binding in a judgment is

the principle upon which the case is decided. The

enunciation of the reason or principle on which the question

before a court is decided is alone binding as a precedent.

The final outcome or decision is binding between the parties

only but it is the abstract ratio decidendi ascertained on a

consideration of the judgment in relation to the subject

matter of the decision which alone has the force of law and

constitutes a binding precedent under Article 141 of the

Constitution of India. To be precise, it is the rule deductible

from the application of the law to the facts and

circumstances of the case which constitutes its ratio

decidendi. Not everything said in the judgment or any

observation made by the judge, can be said to be binding.

Thus, ratio decidendi of a case is the rule of law expressly or

impliedly treated by the judge as a necessary step in

57 reaching his conclusion, having regard to the line of

reasoning adopted by him. It is the ratio which is binding on

subsequent Benches, coordinate or smaller. The conclusion

does not operate as a ratio decidendi.

34.1. The principle of per incuriam would be attracted

only when a decision is rendered in ignorance of some

statutory provision(s) or a precedent binding on the court.

Ordinarily, a ruling of a coordinate Bench is binding on

subsequent coordinate Benches or on Benches of lesser

strength. However, there is an exception to this rule. A

decision which is rendered per incuriam has no precedential

value. Such a decision would not be binding as a judicial

precedent. A coordinate Bench can disagree with it and

decline to follow it. The per incuriam rule is applicable to the

ratio decidendi only and not to obiter dicta. The subsequent

decision shall be declared per incuriam only if there exists a

conflict in the ratio decidendi of the pertinent judgments.

35. MOEF&CC issued Office Memorandum (OM)

dated 07.07.2021 purportedly for laying down standard

operating procedure for identification and handling of

58 violation cases under the 2006 EIA Notification. At the

outset, the OM referred to the 2017 Notification and

mentioned that the said notification was applicable for six

months from the date of publication i.e. from 14.03.2017 to

13.09.2017. It was also mentioned that on the basis of court

direction, the window period of six months was extended

again from 14.03.2018 to 13.04.2018.

35.1. Thereafter, the OM referred to two decisions of

NGT in Dastak NGO Vs. Synochem Organics Private Limited

and Tanaji Gambhire Vs. Chief Secretary, State of

Maharashtra. While the former gave discretion to the

authorities to take appropriate action in accordance with the

polluter pays principle following due process for past

violations, the latter directed laying down a proper standard

operating procedure for grant of EC in such cases so as to

address the gaps in binding law and practice being currently

followed.

35.2. The OM noted that MOEF&CC was seized of

different categories of violation case which were pending for

action to be taken based on the polluter pays principle and

59 on the principle of proportionality. The OM also takes note

of the statutory framework provided under the Environment

Protection Act and goes on to define violation and non-

compliance.

35.3. Para 10 of the OM is relevant. It lays down five

guiding principles for implementation of the standard

operating procedure. The guidelines are as under:

(i) Action has to be initiated under Section 15 read

with Section 19 of the Environment Protection Act

against all violations.

(ii) Projects not allowable/permissible for grant of EC

as per extant regulations are to be demolished.

(iii) Projects allowable/permissible, if prior EC had

been taken as per extant regulations, to be closed

until EC is granted, if no prior EC had been taken,

or to revert to permitted production level, in case

prior EC had been granted.

(iv) Violators will have to pay for the violation period

which would be proportionate to the scale of the

60 project and extent of commercial transactions on

the principle of polluter pays.

(v) Setting up a mechanism for reporting violation

cases to the regulatory authority.

35.4. Paragraph 11 of the OM lays down the operational

framework of the standard operating procedure. It provides

for three steps. Step 1 is for closure or revision; step 2 is for

action under the Environment Protection Act; and step 3 is

for appraisal under the 2006 EIA Notification. Step 1 has

been explained as under:

Step 1: Closure or Revision

SI Status of EC Action No.

1. If no prior EC has been Order to close its taken operation

2. If prior EC is available for Order to revert the existing/old unit activity/production to permissible limits.

3. If prior EC was not required Restrict the activity/ for earlier production level production to the but is now required extent to which prior EC was not required.

35.5. As pointed out above, step 2 deals with action

under Section 15 read with Section 19 of the Environment

61 Protection Act against the violators. Step 3 provides for

examining permissibility of a project as to whether such a

project was at all eligible for grant of prior EC under the

2006 EIA Notification. It lays down two tests: if not

permissible and if permissible. If a project is not permissible,

it shall be ordered for demolition/closure after issuing show

cause notice and providing an opportunity of hearing. If it is

permissible, terms of reference shall be issued with

directions to complete the impact assessment study and

thereafter to submit environmental impact assessment

report and environmental management plan in a time bound

manner. Such cases of violation shall be subject to

appropriate damage assessment, remedial plan and

community augmentation plan. Further, the competent

authority shall issue directions to the project proponent to

make payment of such amount as may be determined based

on the polluter pays principle and undertaking of activities

in terms of the remedial plan and community augmentation

plan to restore environmental damage caused including its

social aspects. Upon submission of such report and upon

appraisal by the appropriate committees as if it was a new

62 proposal, EC shall be issued which will be effective from the

date of issue. Besides the above, other provisions have also

been laid down to deal with such cases including penalty

provisions for violation cases.

36. The 2021 OM is purportedly issued in terms of

certain directions of NGT for laying down standard operating

procedure for grant of EC in cases of violation of

environmental guidelines including non-obtaining EC,

ostensibly to bridge the gap in binding law and practice. I

have already referred to and discussed about the 2017

Notification including paragraph 14 thereof. The 14.03.2017

Notification made it very clear in paragraph 14 that projects

or activities which were in violation of the 2006 EIA

Notification as on the date of the said 2017 Notification

would only be eligible to apply for EC. Project proponents

could apply for EC under the 2017 Notification within six

months from the date of the said notification. The six

months period was from 14.03.2017 to 13.09.2017.

Additionally, following an order of the Madras High Court,

the window period was extended for a further period of one

63 month from 14.03.2018 to 13.04.2018. A solemn statement

was made before the Madras High Court by the learned

Additional Solicitor General on instructions that the 2017

Notification was only a one-time measure. What the 2017

Notification contemplated was giving a window period to all

the project proponents whose projects or activities were

without EC etc. as on the date of the said notification to

apply for EC. Such project proponents were only eligible to

apply for EC within the window period of six months which

was extended by another one month. A view may be taken

that the 2017 Notification has worked itself out. Neither has

it been extended nor any further window period granted in

paragraph 14 thereof. The 2017 Notification has neither

been repealed nor replaced. As pointed out above, paragraph

14 of the 2017 Notification has also not been amended. In

such a scenario, the 2021 OM was really not warranted.

Unfortunately, it seeks to grant EC to such project

proponents who had started their projects without EC either

after the window period granted by the 2017 Notification or

had failed to apply during the window period provided by the

2017 Notification. In terms of the 2017 Notification, no new

64 project without EC or expansion/modernization without EC

would be permissible or could be regularized after

13.04.2018. Thus, laying down of standard operating

procedure more than 3 years after expiry of the window

period in terms of the 2017 Notification did not make any

sense. Viewed from that perspective, the 2021 OM is

superfluous. As long as the 2017 Notification remained in

force, there is no question of regularization of projects

without EC after 13.04.2018. The 2021 OM goes against the

very grain of, rather is contrary to the statutory 2017

Notification, and therefore has no legal force. The 2021 OM

is per se illegal and invalid and was rightly set aside in

Vanashakti.

36.1. Even if a more charitable view is taken, the 2021

OM can at best be construed to be laying down standard

operating procedure for consideration of the applications

filed by project proponents for grant of EC under the 2017

Notification only and not thereafter. There is no other way

one can justify issuance of the 2021 OM.

65

37. A two-Judge Bench of this Court in Electrosteel

was examining a challenge to an order passed by a Single

Bench of Jharkhand High Court discontinuing previous

interim orders passed by the High Court. By the earlier

interim orders, the appellant was allowed to operate its steel

plant in Bokaro District in the State of Jharkhand under the

supervisory regulatory control of the Jharkhand State

Pollution Control Board. The interim orders were in force for

over two years.

37.1. On or about 08.01.2007, appellant had applied to

the MOEF&CC for grant of EC to establish three NTPA

integrated steel plants at Bokaro. On 21.02.2008 appellant

was granted EC. After obtaining EC, appellant applied to

Jharkhand State Pollution Control Board and other

authorities for grant of consent to establish which was also

granted. However, the appellant established the steel plant

at a site which was 5.3 kilometers away from the site for

which the EC and consent to establish were granted.

37.2. Later on, it was also noticed that appellant had

encroached upon forest land while setting up the steel plant.

66 Accordingly, notices were issued and consent to operate was

withheld. This compelled the appellant to approach the High

Court seeking a direction to the Jharkhand State Pollution

Control Board to grant consent to operate. The writ petition

was disposed of by directing the authority to grant

opportunity of hearing to the appellant and thereafter to

take a decision qua consent to operate.

37.3. However, consent to operate was refused. This

compelled the appellant to approach the High Court again.

Jharkhand State Pollution Control Board directed the

appellant to close down the plant. This was assailed before

the Jharkhand High Court which set aside the order of

closure with liberty to the Jharkhand State Pollution Control

Board to pass fresh order(s) in accordance with law after

affording an opportunity of hearing to the appellant.

37.4. It was thereafter that Jharkhand State Pollution

Control Board granted consent to operate to the appellant

which was valid till 03.12.2017. On or about 20.08.2017,

appellant applied for consent to operate for five years.

Pointing out that appellant had contravened provisions of

67 earlier consent to operate, show cause notice was issued to

the appellant. As the matter was pending, appellant moved

the High Court again. Jharkhand State Pollution Control

Board was directed by the High Court to take a decision on

the application for renewal of consent to operate.

37.5. On 21.08.2018, Jharkhand State Pollution

Control Board rejected the request of the appellant for

consent to operate. Appellant again filed a writ petition

before the High Court. Interim order was passed staying the

order of the Jharkhand State Pollution Control Board.

37.6. On 20.09.2018, MOEF&CC revoked the EC of the

appellant on the ground that it had encroached upon forest

land and that it had shifted the location of its plant thereby

violating conditions stipulated in the EC.

37.7. This led the appellant to approach the High Court

which passed an interim order staying the operation of the

order dated 20.09.2018. Thereafter appellant applied for ex

post facto forest clearance which was granted by MOEF&CC.

On 27.11.2019 appellant applied for a revised EC. High

Court clarified that pendency of the writ petitions would not

68 come in the way of MOEF&CC to consider grant or refusal

of restoration of EC. While the process of appraisal was on,

High Court passed the impugned order discontinuing the

earlier interim orders.

37.8. The two-Judge Bench in Electrosteel noted the

2017 Notification and the 2021 OM and also the fact that by

an interim order passed on 15.07.2021 in Fatima Vs. Union

of India26, Madurai Bench of the Madras High Court had

stayed operation of the standard operating procedure i.e. the

2021 OM.

37.9. By order dated 25.08.2021, MOEF&CC rejected

the application of the appellant for the time being; in fact,

the application was kept in abeyance possibly in view of the

stay order passed by the Madurai Bench of the Madras High

Court.

37.10. It was in that context that the Bench observed in

Electrosteel that there can be no doubt about the need to

comply with the requirement to obtain EC which is non-

negotiable. To protect future generations, it is imperative

26 (2021) SCC Online Madras 12936

69 that pollution laws have to be strictly enforced. Under no

circumstances, can industries which pollute be allowed to

operate unchecked and degrade the environment. Thereafter

the Bench posed the question as to whether an

establishment contributing to the economy of the country

and providing livelihood to hundreds of people should be

closed down for the technical irregularity of shifting its site

without prior EC, without opportunity to the establishment

to regularise its operation by obtaining requisite clearances

and permissions, even though the establishment may not

otherwise be violating pollution laws or the pollution, if any,

can conveniently and effectively be checked. The Bench

answered this question in the negative and went on to hold

that ex post facto EC should not ordinarily be granted and

certainly not for the asking. At the same time, ex post facto

EC in terms of the Environment Protection Act cannot be

declined with pedantic rigidity oblivious of the consequences

of stopping the operations of a running steel plant.

Thereafter the Bench further observed that Environment

Protection Act does not prohibit ex post facto EC. Some

relaxations and even grant of ex post facto EC in accordance

70 with law in appropriate cases where the projects are in

compliance with or can be made to comply with environment

norms is not impermissible.

37.11. This view was reiterated in paragraph 79 where

the Bench declared that ex post facto EC should not be

granted routinely but in exceptional circumstances taking

into account relevant environmental factors. Ex post facto

approval should not be withheld as a penal measure. The

deviant industry may be penalised by imposition of heavy

penalty on the principle of polluter pays and the cost of

restoration of environment may be recovered from it.

37.12. Adverting to Alembic, the coordinate Bench

observed that while this Court deprecated ex post facto EC,

no order for closure of the three industries was passed.

37.13. In that context, the Bench took the view that

Jharkhand High Court was not justified in passing the

impugned order vacating the earlier interim orders thereby

leading to virtual closure of the industry which employed

3,000 regular employees and 7,000 contractual employees

producing steel worth Rs. 4,200 crores. Accordingly, the civil

71 appeal was allowed. Impugned order of the High Court was

set aside with direction to MOEF&CC to take a decision on

the application of the appellant for revised EC and pending

such decision directed that operation of the steel plant

should not be interfered with on the ground of want of EC

etc.

38. From the above, what can be culled out is that

according to the co-ordinate Bench in Electrosteel, the

Environment Protection Act does not prohibit ex post facto

EC. Ex post facto EC though should not ordinarily be

granted and certainly not for asking, but can be granted in

appropriate cases where the projects are in compliance with

or can be made to comply with environmental norms.

Therefore, grant of ex post facto EC is not impermissible.

Court must take a balanced approach which holds the

industries to account for having operated without EC in the

past but without ordering a closure of operations.

39. A two-Judge Bench in Pahwa was examining a

challenge to an order of NGT holding that establishments

such as the manufacturing units of the appellants which did

72 not have prior EC could not be allowed to operate. The

Bench posed the question as to whether an establishment

employing about 8,000 workers which had been set up

pursuant to consent to establish and consent to operate

from the statutory authority and had applied for ex post

facto EC could be closed down pending issuance of EC, even

though it may not cause pollution and/or may be found to

comply with the required pollution norms. The Bench

followed the same line of reasoning as in Electrosteel and

declared that ex post facto EC though should not ordinarily

be granted but could be granted in appropriate cases. The

Environment Protection Act does not prohibit ex post facto

EC. While allowing the appeal, the Bench set aside the

impugned order and directed the authority to take a decision

on the applications of the appellants for EC in accordance

with law. Till such decision was taken, it was ordered that

the appellants should be allowed to operate their units.

39.1. The Bench laboured to explain that words and

phrases in a judgment should not be read like a statute, that

too out of context. Observations of the Division Bench of the

73 Madras High Court that a one-time relaxation was

permissible is not to be construed as a finding that

relaxation cannot be made more than once. If the power to

amend or modify a notification exists, same may be

amended or modified as many times as may be necessary. A

statement made by the counsel in court would not prevent

the authority concerned from making amendments and/or

modifications provided those were as per the procedure

prescribed by law.

40. The two-Judge Bench again in D. Swamy was

hearing an appeal under Section 22 of the National Green

Tribunal Act, 2010 against the final order passed by the

NGT, Southern Zone dismissing an application filed by the

appellant seeking a direction for closure of the common bio-

medical waste treatment facility run by the third respondent

on the ground of alleged non-compliance of the provisions of

the 2006 EIA Notification. The Bench referred to the 2017

Notification and the 2021 OM. After referring to certain

paragraphs of the 2017 Notification, the Bench held that the

said notification was a valid statutory notification issued by

74 the Central Government under Sections 3(1) and 3(2)(v) of

the Environment Protection Act read with Rule 5(3)(d) of the

Environment Protection Rules in the same manner as the

1994 EIA Notification and the 2006 EIA Notification were

issued.

40.1. Thereafter the Bench referred to the order passed

by the Division Bench of the Madras High Court in

Puducherry Environment Protection Association Vs. Union of

India27 and noted the submission made on behalf of the

Union of India by the learned Additional Solicitor General of

India that the relaxation under the 2017 Notification was a

one-time measure and that such a one-time relaxation was

permissible.

40.2. The Bench applied the same reasonings as in

Electrosteel and Pahwa to hold that there is no prohibition

for granting ex post facto EC. The Bench further held that

issue raised in the said appeal was squarely covered by

Electrosteel and Pahwa and went on to declare that closure

27 (2017) SCC Online Madras 7056

75 of facility only on ground of want of prior EC would be

against public interest.

41. Before I sum up the ratio laid down by the two-

Judge Bench in Electrosteel, Pahwa and D. Swamy and

analyse the same qua the ratio laid down in Common Cause

and Alembic, it would be appropriate to first cull out the ratio

from a conjoint reading of Common Cause and Alembic.

Common Cause has built on the jurisprudence developed by

this Court thus far and thereafter the two-Judge Bench

made a declaration of law that those projects where ECs are

required, prior EC is necessary. Grant of ex post facto EC

would be detrimental to the environment. Concept of ex post

facto EC is completely alien to environmental jurisprudence

including the 1994 EIA Notification and the 2006 EIA

Notification. This ratio was further crystalized by a

subsequent coordinate Bench of two Judges in Alembic

which declared that concept of ex post facto EC is in

derogation of the fundamental principles of environmental

jurisprudence. Ex post facto EC is an anathema to the 1994

EIA Notification. Environmental law cannot countenance

76 the notion of an ex post facto EC because it is contrary to

both the precautionary principle as well as the need for

sustainable development.

41.1. It has already been noticed that the 2006 EIA

Notification is an improvement over the 1994 EIA

Notification inasmuch as what was implicit in 1994 was

made explicit in 2006 by emphasizing on the word ‘prior’.

Even in the absence thereof, the ratio laid down is that ex

post facto EC is an anathema to the 1994 EIA Notification.

‘Derogation’ means disparagement; weakening of a law,

authority or power; it can also mean formal exemption from

a law; something which is considered to have no worth; an

act of officially stating that a rule no longer needs to be

obeyed. On the other hand, ‘anathema’ means something

one vehemently dislikes. It is a thing which is devoted to evil;

it is an ecclesiastical curse that prohibits a person from

receiving communion and bars such a person from contact

with members of the church. Thus, from a combined reading

of Common Cause and Alembic the ratio is crystal clear:

there is no concept called ex post facto EC in environmental

77 jurisprudence. It cannot be countenanced. It is an

anathema. This is because it is detrimental to the

environment and could lead to irreparable ecological

degradation.

41.2. The fact that in the concluding portions in

Common Cause as well as in Alembic, the Bench had allowed

the defaulting projects to continue in the peculiar facts of

the first case and also by issuing directions under Article

142 of the Constitution in the latter is not the ratio of the

two judgments and therefore do not form any binding

precedent.

42. The trilogy of Electrosteel, Pahwa and D. Swamy

came about in quick succession. In a span of about ten

months, the three judgments were delivered by a two-Judge

Bench of this Court: Electrosteel on 09.12.2021, Pahwa on

25.03.2022 and D. Swamy on 22.09.2022. The line of

reasoning adopted in all the three judgments is the same.

Referring to Alembic, the Bench after asserting that the

requirement to obtain EC is non-negotiable and that

industries which pollute the environment should not be

78 allowed to operate unchecked and degrade the environment,

however posed the question as to whether an establishment

contributing to the economy of the country and providing

livelihood to hundreds of people should be closed down for

functioning without prior EC. After answering the question

in the negative, the Bench went on to hold that while ex post

facto EC should not be granted ordinarily and certainly not

for the asking, it cannot also be declined with pedantic

rigidity. Environment Protection Act does not prohibit ex

post facto EC. Some relaxations and even grant of ex post

facto EC in appropriate cases is not impermissible. The

Bench observed that while Alembic deprecated ex post facto

EC, no order for closure of the concerned three industries

was passed. A balanced approach should be taken which

holds the industries to account for having operated without

EC but without ordering a closure of operations.

42.1. Though the subject matter in D. Swamy was the

legality and validity of an order passed by the NGT

dismissing an application filed by the appellant seeking a

direction for closure of the common bio-medical waste

79 treatment facility run by the third respondent on the ground

of alleged non-compliance to the provisions of the 2006 EIA

Notification, the two-Judge Bench went on to hold the 2017

Notification and the 2021 OM as being valid; the 2017

Notification was issued in the same manner as the 1994 EIA

Notification and the 2006 EIA Notification were issued.

This declaration of validity was de hors any challenge and

adjudication.

43. A comparison of the earlier two-Judge Bench

decisions in Common Cause and Alembic on the one hand and

Electrosteel, Pahwa and D. Swamy on the other hand would

clearly indicate that the latter trilogy of judgments went on a

tangent and completely contrary to the ratio laid down by the

previous two-Judge Bench in Common Cause and Alembic.

While Common Cause and Alembic clearly laid down the

principle following evolution of the environmental

jurisprudence in the country and declared as a principle of

law based on the pleadings, other materials on record and

arguments of the parties including the issues adjudicated that

those projects where ECs are required, prior EC is necessary;

80 grant of ex post facto EC would be detrimental to the

environment. Concept of ex post facto EC is in derogation of

the fundamental principles of environmental jurisprudence;

rather, it is completely alien to environmental jurisprudence.

In fact, ex post facto EC is an anathema to environmental

jurisprudence which cannot countenance such a notion or

concept. We have noticed the meaning of the word

‘derogation’ which means formal exemption from the law.

On the other hand, ‘anathema’ means a thing which is

devoted to evil; an ecclesiastical curse that prohibits a

person from receiving communion and bars such a person

from contact with members of the church. Thus, the ratio

is crystal clear: there is no concept of ex post facto EC in

environmental jurisprudence. In contrast, the subsequent

two-Judge coordinate Bench declared in Electrosteel, Pahwa

and D. Swamy that there is no absolute prohibition under the

Environmental Protection Act to grant ex post facto EC, rather

grant of ex post facto EC is not impermissible. In appropriate

cases, ex post facto EC can be granted. It is thus clear that

the subsequent coordinate Bench in Electrosteel, Pahwa and

D. Swamy has not followed the binding precedent of the

81 previous two-Judge Bench declared in Common Cause and

Alembic. It is not possible to reconcile the two sets of

judgments. The latter set of judgments in Electrosteel,

Pahwa and D. Swamy is clearly in conflict with the ratio laid

down in Common Cause and Alembic. Therefore, the latter

judgments in Electrosteel, Pahwa and D. Swamy are clearly

hit by the principle of per incuriam. A per incuriam judgment

is not binding on a subsequent coordinate Bench. A

coordinate Bench can disagree with it and decline to follow

it. As held in A.R. Antulay and Bilkis Yakub Rasool, a per

incuriam decision has no precedential value and the decision

rendered per incuriam is not binding. Therefore, the two-

Judge Bench in Vanashakti rightly followed the correct ratio

laid down in Common Cause and Alembic which is in

complete alignment with the environmental jurisprudence

developed in our country and has build upon it, rather than

following the per incuriam decisions in Electrosteel, Pahwa

and D. Swamy. The fact that certain paragraphs in

Electrosteel were not discussed in Vanashakti or that the

judgments in Pahwa and D. Swamy were not mentioned and

discussed would not make an iota of difference in as much

82 as the two-Judge Bench in Vanashakti was not bound to

follow the per incuriam decisions of a coordinate Bench in

Electrosteel, Pahwa and D. Swamy. On the contrary, the

Vanashakti judgment is a further development on the

jurisprudence carried forward by Common Cause and

Alembic and has rightly followed the ratio laid down in

Common Cause and Alembic.

43.1. The fact that the two-Judge Bench in D. Swamy

had declared the 2017 Notification and the 2021 OM as

being valid would also not make any difference to the

declaration made by the subsequent coordinate Bench in

Vanashakti where the 2017 Notification and the 2021 OM

have been declared as illegal and invalid. As already noticed

above, the legality and validity of the aforesaid notification

and OM was not the subject matter in D. Swamy; there was

no adjudication on the said notification and OM. Just by the

way and as a justification for its decision dismissing the

application of the appellant, the two-Judge Bench came to

an abrupt conclusion about the validity of the 2017

83 Notification and the 2021 OM. No adjudication and

reasoning on this aspect are discernible.

43.2. In Jayant Verma, the subsequent coordinate

Bench considering constitutional validity of Section 21-A of

the Banking Regulation Act, 1949 noticed that an earlier

two-Judge Bench in Yasangi Venkateswara Rao had held

the said provision to be valid. After declaring that the

decision in Yasangi Venkateswara Rao was per incuriam as

it failed to discuss any law and precedent and that no ratio

decidendi was forthcoming in the decision in Yasangi

Venkateswara Rao, the subsequent two-Judge coordinate

Bench posed the question as to whether the judgment in

Yasangi Venkateswara Rao was binding on it since both the

Benches were of equal strength i.e. two-Judge Bench. The

two-Judge Bench in Jayant Verma declared that the

principle of per incuriam would kick in and that the

judgment in Yasangi Venkateswara Rao could not deter it

from laying down the correct law on the subject. Therefore

and following the above principle, no fault can be found in

Vanashakti when the two-judge Bench declared the 2017

84 Notification and the 2021 OM as being invalid and legally

unsustainable, ignoring the declaration made in D. Swamy.

44. By not following the binding precedent laid down

in Common Cause and Alembic, the latter coordinate Bench

took a completely divergent view in Electrosteel, Pahwa and

D. Swamy though the ratio laid down in the former

judgments were clearly binding on the latter. In the process,

judicial discipline and judicial propriety have been

breached.

45. The United Nations Conference on Environment

and Development, also known as the Rio Conference or the

Earth Summit, was held at Rio De Janeiro, Brazil in June,

1992. This was followed by the United Nations Conference

on Sustainable Development, also known as the Rio+20

Conference, again held in Rio De Janeiro, Brazil in June,

2012. The 2012 Conference built up upon the 1992

Conference and made a declaration recognising climate

change as a pervasive crisis, calling for urgent action to

arrest the same, aligning with the United Nations

Framework Convention on Climate Change.

85 45.1. The Paris Agreement, 2015 is a legally binding

international treaty on climate change. As of today, 195

nation states have joined the Paris Agreement, committed to

combat climate change. In India, the union cabinet gave its

approval to ratify the Paris Agreement on climate change in

October, 2016 though India had signed the agreement

earlier in April, 2016.

45.2. The consistent theme in all the three conferences

and agreement was the acknowledgement that there are

areas of insufficient progress and setbacks in the march

towards achieving sustainable development, aggravated by

economic, food and energy crisis. In this scenario, it was

reiterated that nation states should not backtrack from their

commitment to the outcome of the United Nations

Conference on Environment and Development.

45.3. The expression ‘do not backtrack’ implies that

nation states should always be guided by non-regressive

thinking and that they do not go back on the commitments

made at Rio. The seeds of non-regression is traceable to the

above Rio declaration. Non-regression is an essential

86 component of sustainable development, which as a principle

and goal of environmental jurisprudence has been endorsed

by this Court. In fact, non-regression is not solely about

progressive sustainable development objectives, rather it

aims at preventing measures which roll-back the existing

levels of environmental protection.

46. The principle of non-regression has been

endorsed by the NGT as an accepted norm of environmental

jurisprudence in India. In Society for Protection of

Environment and Biodiversity Vs. Union of India28, it has

been observed that non-regression is based on the idea that

environmental law should not be modified to the

detriment of environmental protection. The precautionary

principle as propounded by this Court is the cornerstone of

environmental jurisprudence in our country. Therefore, the

principle of non-regression needs to be brought into play

because today environmental law is facing a number of

threats, such as, deregulation, movement to simplify and at

the same time attempting to diminish environmental control

28 (2017) SCC Online NGT 981

87 projecting environmental legislation as being too complex

and an economic climate which favours ‘development’ at the

expense of protection of environment.

47. In Navtej Singh Johar Vs. Union of India29, a

Constitution Bench of this Court emphasized that the State,

which includes all three organs i.e. the legislature, the

executive as well as the judiciary, has an obligation to take

appropriate measures for the progressive realisation of

economic, social and cultural rights. This Court held thus:

201. The doctrine of progressive realisation of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat.

The society has to march ahead.

202. The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise.

29 (2018) 10 SCC 1

88

48. The principle of non-regression prohibits the

State from reversing or weakening the existing standards of

environmental protection in the country.

49. Based on the above analysis, it is clear that the

trilogy of Electrosteel, Pahwa and D. Swamy which are being

followed by the review judgment are not only hit by the

principle of per incuriam, those are also in complete conflict

with the principle of non-regression. Electrosteel, Pahwa and

D. Swamy and the review judgment take a complete u-turn

from the trajectory of environmental jurisprudence which

has evolved over the years and consistently followed a

pattern of progression to prevent environmental degradation

and protection of the environment.

50. It is unfortunate that a false narrative is being

created pitting environment against development. It is a

completely untenable binary in as much as ecology and

development are not adversaries. Both are part of the

constitutional construct of sustainable development. At the

cost of repetition, it is reiterated that there is no antinomy

between development and environment. Unfortunately,

89 Electrosteel, Pahwa and D. Swamy on which reliance is

being placed by the review judgment only seeks to reinforce

the above stereotype.

51. Let me now deal with the review petition. Order

XLVII of the Supreme Court Rules, 2013 deals with the

review jurisdiction. As per Rule 1, this Court may review its

judgment or order but no application for review will be

entertained in a civil proceeding except on the ground

mentioned in Order XLVII Rule 1 of the Civil Procedure

Code. The rest of the provisions deal with the procedural

aspect of review.

52. The review petition has been filed by an entity

called Confederation of Real Estate Developers of India. In

other words, it is a body of real estate developers. In para 3

of the review petition, it is stated that the review petition has

been filed in the interest of hundreds of the members of the

confederation who had applied for EC under the 2021 OM.

Thus, from this statement itself, it is evident that members

of the confederation are builders and developers who had

started their projects without EC but had applied under the

90 2021 OM for EC. Beyond this, no other particulars are

available: as to when the members had started their

respective projects; whether each project required prior EC;

or whether expansion of the projects required EC. The dates

of application for EC under the 2021 OM have also not been

mentioned. But from the above averment, it is evident that

the applications for EC were made after 07.07.2021 i.e. the

date of the 2021 OM.

52.1. I am afraid, on the aforestated ground itself, the

review petition is liable to be dismissed. It has already been

noticed supra that on the part of the MOEF&CC, the 2017

Notification has not been withdrawn, though in Vanashakti

the same has been declared invalid and illegal by this Court.

Even if we ignore Vanashakti for the time being, para 14 of

the 2017 Notification is staring at our face. Para 14 has

already been extracted above and analysed. Even at the cost

of repetition, it is reiterated that as per para 14 of the 2017

Notification, only those projects or activities which were in

violation of the 2006 EIA Notification as on the date of the

2017 Notification i.e. 14.03.2017, were only eligible to apply

91 for EC. The time period for making such application was six

months from the date of the said notification i.e. up to

13.09.2017. Following intervention of the Madras High

Court, MOEF&CC had extended this window period for 30

days more from 14.03.2018 to 13.04.2018. If that be the

position, there is no question of any project proponent

applying for EC after 13.04.2018. Even if a more charitable

view is taken, the standard operating procedure introduced

through the 2021 OM sought to streamline the procedure

for grant of EC to only this category of project proponents.

Therefore, members of the review petitioner are not entitled

to any benefit under the 2021 OM, even if the same is

assumed to be valid.

53. In the course of the hearing, learned senior

counsel Mr. Rohatgi advanced a very novel submission on

behalf of the review petitioner. Though at the first blush, the

argument appears to be attractive, it really has no merit at

all. The argument is that if the illegal projects have to be

demolished in terms of the Vanashakti judgment and have

to be rebuilt again after obtaining EC, the demolition will

92 generate more dust and more pollution. That apart, such a

construct is against any logic, economic or otherwise.

53.1. This argument has been noted only to be rejected.

Since the review petitioner itself has said that its members

had applied for EC under the 2021 OM, at the first instance,

such EC cannot be granted in terms of the 2017 Notification

after 13.04.2018. Therefore, the question of consideration of

such projects for EC does not arise at all. More particularly,

it does not lie in the mouth of law violators to advance such

a kind of justification to sustain the illegality which goes to

the root.

54. At this stage, I may mention that the author of

the 2017 Notification and 2021 OM i.e. MOEF&CC has not

filed any review petition for review of the Vanashakti

judgment. MOEF&CC has accepted the verdict of this Court

in Vanashakti. It may also be mentioned that a solemn

assurance was given by the learned Additional Solicitor

General on instructions that the 2017 Notification is only a

one-time measure. This only reinforces the position that the

2021 OM is only a follow up measure of the 2017

93 Notification. It only seeks to lay down standard operating

procedure streamlining the process for consideration of EC

of those project proponents who had availed the benefit of

the 2017 Notification. Even assuming the 2021 OM to be

valid, it has not extended the window period provided under

the 2017 Notification or had not said that it would accept

newer applications for grant of EC. Central Government has

not said anywhere that the learned Additional Solicitor

General had given the solemn assurance before the Madras

High Court without its consent or that it would like to resile

from that position. The Central Government has not made a

single statement disowning such an assurance. Therefore, it

is quite perplexing why the latter coordinate Bench in Pahwa

and thereafter in D. Swamy should take pains in observing

that a statement made by the counsel in court would not

prevent the authority concerned from making amendments

and/or modifications provided such amendments and/or

modifications are as per the procedure prescribed by law.

54.1. The review judgment also proceeds on this line of

reasoning and makes similar observations. A solemn

94 assurance given by one of the highest law officers of the

country that too after obtaining instructions from the

Central Government is certainly binding on the Central

Government and it is clearly discernible that Central

Government has accepted this position.

54.2. Question is when the Central Government or the

MOEF&CC have themselves not come forward to seek

relaxation of this assurance and have not sought for review

of Vanashakti, then why the coordinate Bench in

Electrosteel, Pahwa and D. Swamy and now the review

judgment should be seen so keen virtually prodding the

Central Government or the MOEF&CC to grant ex post facto

EC to all the law violators.

55. The applicant in Miscellaneous Application

(Diary) No. 46855 of 2025 represented by the learned

Solicitor General of India, Mr. Tushar Mehta, only seeks a

clarification and a declaration that the benefit of protection

extended to the ECs already granted under the 2017

Notification in Vanashakti should apply to the project of the

applicant also. It has been pointed out that had it not been

95 for the Vanashakti judgment being delivered at that point of

time, the applicant would have obtained the EC under the

2017 Notification. Similar is the prayer made by the

applicant in Miscellaneous Application (Diary) No. 52650 of

2025 where the applicant seeks identical relief. Besides the

above two, lot many miscellaneous applications have been

filed seeking similar clarification and declaration. I am of the

considered opinion that the concerns of the individual

applicants are capable of being accommodated by way of

appropriate clarification and/or modification of paragraph

35 of the Vanashakti judgment. For that, the entire

judgment in Vanashakti is not required to be recalled.

55.1. In the above context, the very positing of the

question, as posed in the review judgment, whether it would

be in the public interest to demolish all such projects and

permitting the money spent from the pocket of public

exchequer to go in the dustbin, is itself erroneous. Such a

question does not arise at all.

56. Before parting with the record, I would like to

painfully observe that the deadly Delhi smog reminds us

96 everyday about the hazards of environmental pollution.

Supreme Court as the highest constitutional court of the

country has the duty and obligation under the Constitution

of India and the laws framed thereunder to safeguard the

environment. It cannot be seen backtracking on the sound

environmental jurisprudence that has evolved in this

country, that too, on a review petition filed by persons who

have shown scant regard for the rule of law.

57. The review judgment is an innocent expression of

opinion. It overlooks the very fundamentals of

environmental jurisprudence. Precautionary principle is the

cornerstone of environmental jurisprudence. Polluter pays

is only a principle of reparation. Precautionary principle

cannot be given a short shrift by relying on polluter pays

principle. The review judgment is a step in retrogression.

58. For all the aforesaid reasons, review petition is

dismissed.

……………………J. [UJJAL BHUYAN]

NEW DELHI;

NOVEMBER 18, 2025.

97 Reportable

IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION

Review Petition (C) @ Diary No.41929 of 2025 In Writ Petition (C) No.1394 of 2023

Confederation of Real Estate Developers of India (CREDAI).

…Petitioner Versus Vanashakti and Anr.

…Respondents

JUDGEMENT

K. VINOD CHANDRAN, J.

1. This review petition has given rise to two opinions,

placed before me, one allowing the review and the other

rejecting it. Having gone through the two opinions; both

insightful, profound and thought-provoking, I agree with the

one allowing the review, restoring the proceedings in the

writ petitions and the civil appeal, the common judgment

under review having considered an identical challenge,

against a Notification and an Office Memorandum. As a

Page 1 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 necessary corollary, with all the respect at my command, I

have to record my disagreement with the one rejecting the

review, maintaining the judgment dated 16.05.2025.

2. I pen this only since I owe a duty to give reasons for

my concurrence and since the opinion rejecting the review

denounces the one permitting it. Liberty to dissent is the hall

mark of a robust judicial system, distancing itself from an

overbearing allegiance to one’s own beliefs of right and

wrong.

3. The facts giving rise to the controversy are more than

evident from the two opinions. Suffice it to notice that under

the Environment (Protection) Act, 1986, the Environmental

Impact Assessment Notification, 1994 (EIA Not.1994; the

abbreviations in brackets, here and henceforth, used for

brevity) was brought in as a regulatory regime in

furtherance of protection of environment, requiring

Environmental Clearance (EC) for certain projects. Later, on

14.09.2006, the Environmental Impact Assessment

Notification, 2006 (EIA Not.2006) was brought out wherein

the activities coming under the regulatory regime were

Page 2 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 divided into two categories, one requiring prior EC from the

Ministry of Environment, Forest and Climate Change

(formerly MoEF, now designated as MoEF&CC) on the

recommendations and assessment of the Expert Appraisal

Committee (EAC), while the projects falling in the other

category were to be assessed by the State Environmental

Impact Assessment Authority (EIAA) on the

recommendation of the State Expert Appraisal Committee

(SEAC). The controversy arose insofar as another

notification dated 14.03.2017 (Not. of 2017) brought out by

the MoEF&CC which made a provision for grant of ex post

facto EC in respect of the projects which have been initiated

and continued without prior EC under the EIA Not. 2006.

4. Purportedly, on the strength of the directions issued

by the National Green Tribunal (NGT), Principal Bench, New

Delhi in Tanaji B. Gambhire v. Chief Secretary,

Government of Maharashtra and Ors.1, the MoEF&CC

issued an Office Memorandum dated 07.07.2021 (O.M. of

2021), putting in place a Standard Operating Procedure

1 Appeal No.34 of 2020 Page 3 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 (SOP) for identification and handling of violation cases

under the EIA Not. 2006, which provided an open-ended

measure of obtaining EC after commencement or even

completion of the project.

5. The Not. of 2017 and the O.M. of 2021 were struck

down by this Court while sustaining those ECs already

granted under the measure stipulated therein. The review

was filed and arguments addressed on the ground of the

judgement having not looked into the precedents available

and when perused, failed to notice certain compelling

aspects, the observations on which have the effect of a

binding precedent by Co-ordinate Benches. Inter alia, the

hardship caused insofar as the projects which had

proceeded on the basis of the Not. of 2017 and O.M. of 2021,

were pointed out, many of which were only short of the

issuance of EC when the decision came, i.e.: short of an ex

post facto EC in hand.

6. As mentioned at the outset, I am in respectful

concurrence with the opinion allowing the review and the

reasoning in the divergent opinion are the following: -

Page 4 of 19

R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 I. Common Cause v. Union of India2 rejected the

contention that the absence of word “prior” in the

EIA Not. 1994, made available a window for

obtaining an ex post facto EC. It was held that

considering the damage to the environment which

also would have a long-term impact, especially in

cases of mining, a prior EC was mandatory even in

the event of expansion or modernization of existing

mining activities and also in the case of renewal

without any such expansion or modernization. It was

categorically held that an ex post facto EC would be

detrimental to the environment, resulting in

irreparable degradation of the environment. It was

also found that the concept of an ex post facto or a

retrospective EC is completely alien to

environmental jurisprudence including the EIA

Not.1994 and EIA Not. 2006.

2 (2017) 9 SCC 499

Page 5 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 II. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati

& Ors.3 considered the issue of a provision for an ex

post facto EC to industrial units, made possible by a

circular dated 14.05.2002, diluting the requirement

for a prior EC, even under the EIA Notification,

1994. The two Judge Bench in Alembic examined

the notifications and held that ex post facto EC is in

derogation of the fundamental principles of

environmental jurisprudence and is anathema to

the EIA Not. 1994, even when the word “prior” was

not employed therein.

III. The validity of the Not. of 2017 was put to challenge

before the Madras High Court in Puducherry

Environment Protection Association v. Union of

India4 in which the learned Additional Solicitor

General appearing for the Government of India,

across the Bar, submitted on instructions that the

impugned Notification clearly and certainly would

3 (2020) 7 SCC 157 4 2017 SCC OnLine Mad 7056

Page 6 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 be only a one-time measure. The Not. of 2017

provided such measure of ex post facto EC only

between 14.03.2017 to 13.09.2017 which stood

extended by the High Court for a further 30 days:

till 13.04.2018, and not thereafter.

IV. Electrosteel Steels Limited v. Union of India and

Ors.5 though noticed the Not. of 2017 and O.M. of

2021 as also the stay operating against the O.M. in

Fatima v. Union of India Rep. by its Secretary to

the Government6 held that the requirement to

obtain EC is non-negotiable and it is imperative for

the protection of future generations that the

pollution laws are strictly enforced. The Bench, on

the peculiar facts, posed to itself a question as to

whether a technical irregularity of shifting a unit

without prior EC would determinately affect the

employment prospects and the economy of the

country. A relaxation was made but at the same time

5 (2023) 6 SCC 615 6 (2021) SCC Online Mad 12936

Page 7 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 emphasizing the requirement of a prior EC and

asserting that ex post facto EC should not orderly be

granted and certainly not for the asking. Only in

exceptional circumstances; therein of a virtual

closure of the industry, resulting in large scale loss

of employment and stoppage of huge revenue, an

ex post facto approval was directed to be

considered.

V. Pawha Plastics Private Limited and Anr. v. Dastak

NGO and Ors.7 and D. Swamy v. Karnataka State

Pollution Control Board and Ors.8 followed

Electrosteel and found that closure of an industry

solely on the ground of want of prior EC would be

against public interest. Electrosteel, Pahwa

Plastics and D. Swamy adopted the same

reasoning which was contrary to that laid down in

Alembic and Common Cause. The three later

judgments having not followed the binding

7 (2023) 12 SCC 774 8 (2023) 20 SCC 469

Page 8 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 precedent in the former two; of Co-ordinate

Benches, there is no reconciliation possible of the

two sets of judgments. The later decisions are

clearly in conflict with the ratio in the earlier

decisions and hence per incuriam, which would not

bind a Coordinate Bench as has been held in

National Insurance Co. Ltd. v. Pranay Sethi9.

VI. The Not. of 2017 and O.M. of 2021 would result in a

back tracking of the fundamental principles of

environmental protection, which should always be

guided by a non-regressive thinking, which would

work against the commitments made at the Rio

Conference; the Earth Summit held in June 1992. A

false narrative pitting environment against

development is untenable, and the principle of

sustained development is reinforced by a plethora

of judgments of this Court.

VII. The argument raised that demolition of those

projects, which were completed on the strength of

9 (2017) 16 SCC 680

Page 9 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 the O.M. of 2021, albeit illegally, would result in

further pollution especially if an EC was possible

before initiation cannot be entertained since it

emanates from the violator, as a recourse to justify

the blatant illegality. Especially, when there is no

review filed by the author of the notification, the

Central Government who has also given an

assurance through one of the highest Law Officers

of the Country, after obtaining instructions, which

binds the Central Government.

7. My reasoning is confined to whether the review is

warranted. I forbear from considering the validity of the Not.

of 2017 or the O.M. of 2021, which, if the review is allowed

will have to be considered by the Bench before which it is

posted, which consideration cannot be preempted.

I. Common Cause considered the EIA Not. 1994 and EIA

Not. 2006 to hold that ex-post facto EC is completely

alien to environment jurisprudence and the said

notifications. However, 102 lease holders who did not

have EC was permitted to move the authorities for

Page 10 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 necessary clearances, approval and consents after

depositing the remaining dues and full payment of

compensation and the penalties levied. In the event of

ex-post facto EC being granted the mining lease was

directed to be renewed.

II. Alembic followed Common Cause and held that

environment law cannot countenance the notion of ex-

post facto EC. But, finding the appellant industries to

have obtained EC, though after several years of the

Not. of 1994, permitted the industries to continue

operations subject to the environment degradation

being evaluated and penalty imposed for

disobedience with the regulatory regime. This Court

hence in both these decisions despite finding that ex-

post facto EC is not permissible at all, on facts allowed

continued operations subject to conditions, adopting a

balanced approach, while not totally condoning the

disobedience by enabling punitive reparations.

III. Needless to emphasize that requirement of an EC was

brought in by an EIA notification under the

Page 11 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 Environment Protection Act. When the requirement of

a prior EC itself was brought about under the statutory

regime, invoking the power conferred on the

Government can it be said that the rigor of the

regulation cannot be relaxed. The answer to this would

primarily rest upon the principle that a power to bring

in a particular regulation would also encompass within

itself the power to cancel it. This would have to be

tested herein on the anvil of the principles regulating

environmental jurisprudence. However, the power to

relax the requirement cannot be found to be totally

absent and, in that circumstance, whether the

undertaking made would be a blanket restriction is the

moot question. This again, would have to be tested on

the principle of whether there can be an estoppel

against a statute, which issue, looming large,

obviously has not been dealt with in the judgment

under review.

IV. Electrosteel, Pahwa & D. Swamy cannot per se be

held to take a divergent view from Common Cause

Page 12 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 and Alembic, since both these former decisions were

noticed in the later decisions and while reaffirming the

principle a balanced approach undertaken as in the

earlier cases. This was in consonance with the

relaxation, permitting an ex-post facto EC to be

obtained, as adopted in the earlier decisions. There

was a possibility of reconciliation, especially since the

Not. of 2017 was not in the contemplation of the earlier

decisions. Hence if a contrary view had to be taken

necessarily there should have been a reference to a

larger Bench, especially when the Not. of 2017 was

referred to and upheld in D. Swamy placing reliance

on Section 21 of the General Clauses Act, 1897 which

affirms the power to do something, enabling the

addition, amendment, variation or rescinding of

anything so done. The principle in Pranay Sethi would

have been rendered more alluring and eloquent,

achieving further illumination, if such a reference was

made; especially after noticing the decision in

Page 13 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 Electrosteel in its entirety and the validation of the Not.

of 2017 in D. Swamy.

V. The Not. of 2017 and O.M. of 2021, without holding on

its validity, was brought in, not as a regressive

measure but reckoning the ground realities. The

regulatory regime falters oftener than ever, for

multiple reasons, not possible of

compartmentalization as due to one or the other

malady; all of which an evolving society would attempt

to rectify in the long run. As has been held in Navtej

Singh Johar and Ors. v. Union of India10, the State,

which includes all the three organs, has an obligation

to take appropriate measures in progressive

realization of economic, social and cultural rights. The

Legislature, the Courts and the Executive, hence, has

to reckon the changing times stark realities and the

gross consequences of a strict, straitjacket

implementation of a regulatory regime, which also

could turn counterproductive as in the present case.

10 (2018) 10 SCC 1

Page 14 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 VI. This Court under Article 142 of the Constitution of India

is empowered to pass orders to secure ends of justice,

which has been rightly invoked in the decisions cited,

concerning environment itself. Can it be said that

when the State is found to be conferred with a power

to regulate, it is totally denuded of the power to relax

the rigor brought in, merely because it concerns the

environment. It could be held circumscribed in its

invocation, in certain matters, still, the power cannot

be found to be totally absent.

VII. As far as narratives are concerned, those cannot be

categorized as total lies, half-truths or full truths, none,

possible of reliance in adjudication. Neither Court nor

Judge would proceed on mere narratives to roll back

a measure provided by law or to enforce one not laid

down by a statute or a legal instrument.

VIII. As is discernible from the records, the writ petitions

challenging the Not. of 2017 and O.M. of 2021 were

initiated with considerable delay though the petition

leading to the Civil Appeal before the Madras High

Page 15 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 Court was in 2017 itself. The relaxation in the

regulatory regime was kept alive for long years when

the matters were pending. Two examples, one of a

green field airport and the other of a full-fledged

hospital and medical college having been constructed

and completed when the regulatory regime was in a

fluid state cannot be ignored. It has been rightly

argued that demolition of the structures raised, merely

for the purpose of applying for a prior EC to construct

afresh, would not only cause undue hardship but also

result in further depredation of the environment by the

debris generated, which will not be possible of reuse

leading to abject waste of resources and massive loss

of revenue. Hence a rigid application of the regulation

would be counterproductive especially for those who

adjusted their affairs on the strength of the relaxation.

IX. Prima facie the notification enables assessment of

whether a prior EC was permissible or not, in the

perspective of the facts existing at the time of

commencement of the project. The consideration is

Page 16 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 possible, only on condition of closure of operation

while the assessment is carried out. It also enables

sufficient safeguards for determination & payment of

penalties proportionate to the scale of the project and

the extent of commercialization during the violation

period, furnishing of bank guarantee equivalent to the

amount for implementation of Remediation/Natural &

Community Resource Augmentation Plan and

eventually if EC is not possible, demolition or closure

of the project, which eventuality also attracts the

deterrent and penal provisions under the Environment

Protection Act. A rigid, pedantic approach first

directing demolition and then enabling an application

for EC for commencing the very same project would

be akin to setting the clock back to save time.

X. The records reveal that the NMDC, the State of

Telangana and the Karnataka Industrial and

Infrastructure Development Corporation Limited;

State and its instrumentalities have filed separate

review petitions against the very same judgment. The

Page 17 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 observation that the judgments in Electrosteel, Pahwa

& D. Swamy as also the opinion allowing the review,

display a ‘keen virtual prodding of the Government of

India or the MoEF&CC, to grant ex post facto EC to all

violators’ (sic), ignores and disregards, the provisions

of the Not. of 2017 read with the O.M. of 2021, the

identical measure adopted by Common Cause &

Alembic and the validity conferred to like violators

who fortuitously obtained the ex post facto EC before

the judgment was delivered, while denying it to

similarly placed who were on the verge of being

issued with an EC. In my humble opinion, it also

lowers the majesty of this Court.

8. The balanced approach, in the wake of admitted

violations, taken in Common Cause & Alembic, have been

completely lost sight of, by the judgment under review. The

judgment under review, with due respect did not look into

the aspects of the power conferred under the Environment

Protection Act and the legal principles regarding an

undertaking given in derogation of the statutory provisions.

Page 18 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023 The judgment under review failed to notice the decision in

Electrosteel in its entirety and its attention was not drawn to

Pahwa and D. Swamy. It is one thing to find Electrosteel,

Pahwa and D. Swamy per-incuriam in the original

proceeding, which would have restrained a review on that

ground; but quite another to reject the prayer for review on

the ground that though not noticed or referred to, those

decisions are per incuriam; which still is a valid ground for

review for not having been considered. I fully concur with

the opinion of the Learned Chief Justice of India and find the

review to be not only warranted, but imperative and

expedient.

……..…..……………………. J.

(K. Vinod Chandran)

New Delhi;

November 18, 2025.

Page 19 of 19 R.P. (C) Diary No.41929 of 2025 in W.P. (C) No.1394 of 2023