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SC commences hearing pleas seeking review, modification of May 16 verdict on grant of EC to projects
Giving illustrations, he said that the Centre is empowered to grant retrospective EC to projects and this aspect was ignored in the impugned verdict.
"The judgement says if there is no EC then demolish it and rebuild after taking the EC. The court was of the view that if there was no prior EC t" onclick="showFullScrImg(this)"/>
The Supreme Court began hearing 40 petitions challenging its May 16 verdict that outlawed retrospective environmental clearances for projects violating norms. Developers argue the ruling mandates demolition, ignoring the government's power to grant such clearances with penalties. The court is reviewing the judgment, which emphasized the fundamental right to a pollution-free atmosphere.
The Supreme Court on Tuesday commenced the hearing on as many as 40 petitions seeking modifications and a review of its May 16 verdict that had struck down the Centre's decision to grant retrospective clearances to projects found in violation of environmental norms.
Senior advocate Mukul Rohatgi, appearing for the Confederation of Real Estate Developers' Associations of India (CREDAI), an apex body for private real estate developers, commenced the submissions before a bench comprising Chief Justice B R Gavai and justices Ujjal Bhuyan and K Vinod Chanran.
The special bench is hearing 40 petitions including the pleas of CREDAI and PSU SAIL. They are seeking a review or modification or clarification of the judgement.
The May 16 verdict by a bench of justices A S Oka, since retired, and Justice Bhuyan had barred the Ministry of Environment Forests and Climate Change (MoEFCC) and the authorities concerned from granting retrospective environmental clearances to projects which are found in violation of environmental norms.
Justice Oka, who authored the judgement under review, had set aside the post-facto environmental clearance (EC) granted to firms, saying the right to live in a pollution free atmosphere was a part of the fundamental right.
Assailing the verdict, Rohatgi said, "This judgement tells that there is only way out which is demolition (of structures)."
Giving illustrations, he said that the Centre is empowered to grant retrospective EC to projects and this aspect was ignored in the impugned verdict.
"The judgement says if there is no EC then demolish it and rebuild after taking the EC. The court was of the view that if there was no prior EC then demolish everything," he said.
The provision of retrospective grant of EC on payment of penalty was made by the government to save the projects if they have other clearances, he said.
The bench then asked if the government can make the provision of grant pardon in murder cases.
Rohatgi said that even a murder convict is released after 14 years as the policy is to reform and not to take a retributive measure.
He said if everything is demolished then it will cause more pollution and moreover, there is a policy of review while granting the EC.
Rohatgi said at times, the project proponent may not be aware that it has to take a prior EC then in that case, the project has to be saved.
"Ignorance of law is not an excuse," the bench said.
The counsels, who were against reviewing or modifying the impugned judgement, said that the other side will have to establish that there was an "error apparent on the face of record".
Another senior advocate Kapil Sibal, appearing for a firm whose airport is facing the danger of demolition, said that the constructing a green field airport is a permissible activity and the judgement should be reviewed.
The bench will resume hearing on Thursday.
Earlier on September 16, the CJI-led bench agreed to hear the pleas seeking review of its May 16 verdict.
One of the petitioner firms M/S Kumar Organic Products Limited, represented by advocate Gopal Jha, has sought a clarification on the status of disposal of applications for the environment clearance filed pursuant to the March 14, 2017 notification and awaiting final approval prior to the May 16 judgment "for the reasons beyond the control of the applicants".
"We are considering the review (petitions)... it is for them to point out errors apparent on the face of the records... fortunately or unfortunately, we have to decide," the CJI said when some lawyers objected to the petitions.
The impugned verdict had also made scathing remarks in its verdict passed on a plea filed by NGO Vanashakti and said, "The Union Government, as much as individual citizens, has a constitutional obligation to protect the environment."
The erstwhile bench, however, said the ex-post facto environmental clearances granted in certain cases both under the 2017 notification and the 2021 office memorandum (OM), at the present stage, wouldn't be disturbed.
Some firms have now sought permission to get the ECs on the ground that they had no role in the delay in getting the clearances.
The judgement had said it "must come down very heavily" on the Centre's attempt to do "something which is completely prohibited under the law".
"Cleverly, the words ex post facto have not been used, but without using those words, there is a provision to effectively grant ex post facto EC. The 2021 OM has been issued in violation of the decisions of this court..."
The bench, therefore, declared the 2021 office memorandum (OM) and related circulars "arbitrary, illegal, and contrary to the Environment (Protection) Act, 1986 and the Environmental Impact Assessment (EIA) Notification, 2006".
The Centre, as a result, was restrained from issuing directions for grant of ex post facto clearances in any form or manner or for regularising the acts done in contravention of the EIA notification.
The court ruled these measures, unlawfully permitted the regularisation of projects in violation of environmental laws.
Add as a Reliable and Trusted News Source Add Now! Referring to a March 14, 2017 MoEFCC notification, the bench said it was made applicable to projects or activities that started the work on site, expanded production beyond the limit of EC, or changed the production mix without obtaining the clearance.
Source: EconomicTimes
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