M/S PAHWA PLASTICS PVT. LTD AND ANR. VERSUS DASTAK NGO AND ORS. 2022 SCC ONLINE SC 362
M/S PAHWA PLASTICS PVT. LTD. AND ANR. VERSUS DASTAK NGO AND ORS.
2022 SCC ONLINE SC 362
FACTS
Pahwa Plastics Private Limited, the appellant carries on a business of manufacturing and sale of basic organic chemicals named as Formaldehyde in its two manufacturing units, one at village Kharawar in Rohtak, and the other at village Jathlana, Jagadhri in Yamuna Nagar in Haryana which is established and operated as a Micro, Small and Medium Enterprise (MSME). The company applied for consent to establish (CTE) its Yamuna Nagar Unit for the manufacture of Formaldehyde for which the Haryana State Pollution Control Board (HSPCB) granted Consent to Establish (CTE). Later, the appellants duly applied for EC in respect of their manufacturing units after a notification issued by the central government, under sections 3(1) and 3(2)(v) of the EP act, which provides for the grant of ex post facto EC for projects who had commenced, continued or completed a project Without obtaining EC under the EP Act/ EP Rules. Finding the units are suitable for grant of EC in terms of the prevailing guidelines as per the scrutinizing of their applications revealed, an Expert Appraisal Committee was constituted by the Ministry of Environment and Forests and Climate Change (MoEF&CC) which subsequently conducted a public hearing to finalize the cases of the Appellants for issuance of Terms of Reference (TOR). Meanwhile, a Non-Governmental Organization (NGO) named as DASTAK, the respondent filed an application before the National Green Tribunal praying that the order passed by the State of Haryana, intending to grant ex post facto EC, be quashed and units which were operating without EC be closed.
CASE HISTORY
Consequently, disposing of the application of DASTAK. And later, challenging the impugning rule held by the NGT, the aggrieved party thereof moved to the Supreme court of India with an appeal seeking to halt the order of the NGO.
ISSUES
- Whether an establishment employing about 8000 workers, which has been set up Pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post Facto EC [2]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?
REFERRED CASE LAWS
Electro steel Steels Limited v. Union of India 2021 SCC online SC 1247: 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 the opportunity to the establishment to regularize 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.
“….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. Thus, “Ex post facto approval should not be withheld only as a penal measure”.
JUDGEMENT
Before the Supreme Court, the question of the relevant law, as stated in the judgement, is whether an establishment employing around 8,000 workers and which has been set up after receiving the ‘consent to establish’ and the ‘consent to operate’ from the proper statutory authority and which has applied for ex post facto environmental clearance can be closed pending issuance of the clearance – even though it may not release pollutants and/or may be found to comply with the required norms.
The Supreme Court bench, headed by Justice Indira Banerjee, concluded:
Contributing to the economy of the Country: “The manufacturing units of the Appellants appoint about 8,000 employees and have a huge annual turnover. An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution. …”
“Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. …”
The 1986 Act (Environment Protection Act 1986) 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 environment norms, is not impermissible.
Importance of Environmental Clearance: The court observed that “There can be no doubt that the need to comply with the requirement to obtain EC is non-negotiable. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced.”
Under no circumstances can industries, which Pollute, be allowed to operate unchecked and degrade the Environment”. Further, it requested to impose a heavy penalty as a penal in accordance with the principle of ‘polluter pays’ on any industry that deviates from these norms and the cost of restoration of the environment may be recovered from it.
Reiterating its former decision in Electrosteel Steels Limited v. Union of India 2021 SCC online SC 1247 , the court stated “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 in their survival.”