Full Judgment Text
Non-Reportable
2023 INSC 999
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2212 OF 2020
M/s Sweta Estate Pvt.Ltd. Gurgaon … Appellant
versus
Haryana State Pollution Control Board
& Anr. … Respondents
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1 . By this appeal, the appellant has taken an exception to the
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judgment and order dated 24 February 2020 passed by the
National Green Tribunal, Principal Bench at Delhi. The appellant
undertook a project of developing a housing colony at Gurgaon-
Sohna Road, Sector 48, Gurgaon, Haryana. The housing project
comprised several buildings containing apartments, service
apartments, etc. Initially, in August 2006, the appellant applied
to the Haryana State Pollution Control Board (for short ‘the Board’)
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.11.10
19:19:04 IST
Reason:
for a grant of Consent to Establish (CTE) under Section 21 of the
Air (Prevention and Control of Pollution) Act, 1981 (the ‘Air Act’)
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and Sections 25 and 26 of the Water (Prevention and Control of
Pollution) Act, 1974 (the ‘Water Act’) to the Board. Based on
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another application made by the appellant, on 10 April 2007, the
Ministry of Environment, Forest and Climate Change of the
Government of India granted environmental clearance (EC) to the
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appellant to develop the housing complex. On 18 April 2007, the
Board granted CTE under the Air and Water Act. In 2013 and
2015, the appellant applied for renewal of the CTE. The
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applications were rejected. On 29 December 2015, the Board
issued a show cause notice of closure under Section 33-A of the
Water Act and Section 31-A of the Air Act. The notice also called
upon the appellant to show cause why the appellant should not be
penalised under the relevant provisions of the Air Act and the
Water Act. The appellant replied to the said notice.
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2 . On 4 March 2017, the appellant applied for EC for the
expansion of the housing project to the Government of India. On
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21 June 2017, the Chairman of the Board passed an order
granting approval for prosecuting the appellant and its responsible
Directors for the offences punishable under Sections 43 and 44 of
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the Water Act and Sections 37 and 38 of the Air Act. On 28
February 2012, the Board issued an office order providing that the
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industry which comes into operation without obtaining CTE can
be granted CTE ex-post facto, provided the unit is compliant in all
respects.
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3 . On 29 August 2017, the Government of India granted EC to
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the appellant for the housing complex. On 18 October 2017, the
Board granted ex-post facto CTE to the appellant, which contained
a condition that prosecution would be initiated against the
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appellant as per the approval granted under the order dated 21
June 2017. In January 2018, the appellant preferred an appeal
before the Appellate Authority established under the Air and Water
Acts by invoking Section 31 of the Air Act and Section 28 of the
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Water Act for setting aside the order dated 21 June 2017 passed
by the Chairman of the Board granting approval to prosecute the
appellant. The Appellate Authority, by judgment and order dated
15th March 2018, quashed the order of approval on the ground
that, subsequently, ex-post facto CTE has been granted to the
appellant. Being aggrieved by the said order of the Appellate
Authority, the Board preferred an appeal under Section 16 of the
National Green Tribunal Act, 2010, before the National Green
Tribunal (NGT). By the impugned judgment, the appeal was
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allowed, and the order dated 15 March 2018 of the Appellate
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Authority was quashed and set aside. While doing so, in
paragraph 12, observations were made by the NGT that EC granted
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on 29 August 2017 cannot condone the illegal construction
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raised from 9th April 2012 to 29 August 2017. NGT held that the
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environment clearance granted on 10 April 2007 expired on 9
April 2012.
SUBMISSIONS
4. The learned senior counsel appearing for the appellant urged
that out of a total of 28 towers, 26 towers have been constructed.
He pointed out that in 2010 and 2014, occupation certificates were
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granted for nine and ten towers, respectively. On 24 May 2016,
an occupancy certificate was granted with respect to seven towers.
He submitted that even assuming without admitting that the EC
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expired on 9 April 2012, renewal or grant of a fresh EC was not
required as the superstructure of the building was complete before
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9 April 2012, and for completing the further construction, EC was
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not required. In any event, EC was granted on 29 August 2017.
The learned senior counsel urged that in any event, NGT had no
reason to deal with the controversy regarding the effect of the
absence of EC as the appeal was limited to the legality and validity
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of the order dated 15 March 2018 passed by the Appellate
Authority.
5. The learned senior counsel appearing for the appellant
further submitted that once ex-post facto CTE was granted, even
if the appellant conducted certain activities before the grant of ex-
post facto CTE which required CTE, the appellant cannot be
prosecuted as in this case, there is not a mere grant of CTE but
the same will have retrospective effect. He would, therefore,
submit that the impugned judgment and order is completely
illegal.
6. The learned counsel appearing for the Board submitted that
there was a specific condition imposed in the ex-post facto CTE
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that as per the prosecution the approval order dated 21 June
2017 will be filed. He submitted that the appellant never
challenged the said condition, and therefore, the appellant had no
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right to challenge the order dated 21 June 2017 approving the
prosecution. He submitted that prior to the grant of the ex-post
facto CTE, on three occasions, the applications made by the
appellant for the grant of CTE were rejected. He submitted that
work of development cannot be carried out unless there is a valid
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and subsisting EC, and for a period between 9 April 2012 and
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29 August 2017, admittedly, no EC was granted to the appellant.
He would, therefore, submit that no interference was called for
with the impugned judgment.
CONSIDERATION OF SUBMISSIONS
7. Firstly, we deal with the scope of the appeal before the NGT.
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The appeal was specifically for challenging the order dated 15
March 2018 by which the Appellate Authority set aside approval
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granted by the Chairman of the Board on 21 June 2017 to
prosecute the appellant for the offences punishable under the Air
and Water Acts. Therefore, the only issue in the appeal preferred
before the NGT was regarding the legality and validity of the order
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of the Appellate Authority and the approval granted on 21 June
2017 to prosecute the appellant. While dealing with the appeal,
NGT ought not to have gone into the issue of whether the EC
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granted earlier expired on 9 April 2012. Considering the limited
scope of appeal, NGT ought not to have gone into the question of
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whether the construction carried out by the appellant between 9
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April 2012 to 29 August 2017 was illegal. Therefore, what is held
in paragraph 12 of the impugned judgment will have to be set
aside.
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8. Now, we come to the main issue regarding CTE. There is no
dispute that the appellant required CTE under Section 21 of the
Air Act and Section 25 read with Section 26 of the Water Act. In
this appeal, we need not go into the question whether there exists
a power in the Board to grant ex-post facto CTE as the issue
whether ex-post facto CTE could be granted did not arise before
the Appellate Authority.
9. The Chairman of the Board issued the office order dated 28th
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February 2012 based on a resolution dated 8 February 2012
passed by the Board in its meeting. The relevant part of the said
office order reads thus:
“The agenda regarding Ex-post facto Consent
to Establish was placed before the Board in its
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181 meeting held on 08.02.12 vide agenda
item No. 161.18 . It has been decided that
the industry which comes into operation
without obtaining consent to establish, be
granted Ex-post facto Consent to establish
in case unit is presently compliant in all
respects. But simultaneously prosecution
action will be taken against the unit which
violated the provisions of the Water/Air
Acts by not obtaining prior consent to
establish from the Board, as a past
violation .”
(emphasis added)
10. It cannot be disputed that ex-post facto CTE was granted to
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the appellant on 18 October 2017 on the basis of the said decision
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dated 8 February 2012 taken by the Board. Moreover, condition
no. 4 in ‘other conditions’ in the ex-post facto CTE reads thus:
"4. Prosecution case will be filed against the
unit as per approval for prosecution received
from Head office vide orders No-
HSPCB/2017 /926-27 dt.21.06.2017".
11. As noted earlier, even before the ex-post facto CTE was
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granted, the order dated 21 June 2017 was made by the
Chairman granting approval to prosecute the appellant and its
responsible Directors/persons for offences punishable under the
Air and Water Acts. The appellant neither challenged the
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resolution of the Board dated 8 February 2012 nor the said
condition no.4 by filing any proceedings. The appellant did not
apply to modify condition no.4 by taking recourse to clause (a) of
sub-section (2) of Section 27 of the Water Act. Moreover, an appeal
could have been preferred by the appellant for challenging
condition no.4 by taking recourse to Section 28 of the Water Act
and Section 31 of the Air Act. The appellant did not challenge the
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Board’s decision dated 8 February 2012, authorising the Board
to grant ex-post facto CTE, which clearly provided that
simultaneously with the grant of ex-post facto CTE, action would
be taken against the unit which violated the provisions of the
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Air/Water Acts by not obtaining prior CTE, as a past violation. It
is pertinent to note that the appellant not only failed to make any
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grievance about condition no.4 in the ex-post facto CTE dated 18
October 2017 but acted upon the es-post facto CTE. After the
expiry of two months from the grant of the ex-post facto CTE, the
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appellant challenged the order dated 21 June 2017, granting the
approval for prosecuting the appellant. The said challenge at the
instance of the appellant ought not to have been entertained by
the Appellate Authority as the appellant was bound by condition
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no.4 in the ex-post facto CTE granted on 18 October 2017. In
fact, the judgment of the Appellate Authority shows that the
attention of the Appellate Authority was invited to the aforesaid
condition no.4. After having acted upon the ex-post facto CTE
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dated 18 October 2017, the appellant cannot be allowed to
approbate and reprobate. Therefore, interference by the Appellate
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Authority by its judgment dated 15 March 2018 was illegal and
uncalled for. To that extent, the impugned judgment of the NGT
cannot be interfered with.
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12. Hence, the appeal must succeed in part, and we pass the
following order:
a. The findings recorded in paragraph 12 of the impugned
judgment are set aside on the ground that the issues
decided thereunder were beyond the scope of appeal
preferred before NGT. The issues which are dealt with in
paragraph 12 are kept open. These issues can always be
decided in appropriate proceedings in accordance with the
law. All contentions on that behalf are left open;
b. The impugned judgment and order, insofar as it interferes
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with the judgment and order dated 15 March 2018
passed by the Appellate Authority, is hereby confirmed;
c. There will be no order as to costs and
d. The appeal is partly allowed on the above terms.
….…………………….J.
(Abhay S. Oka)
…..…………………...J.
(Sanjay Karol)
New Delhi;
November 10, 2023.
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