Confederation Of Real Estate Developers Of India (Credai) vs. Vanashakti

REPORTABLE
2025 INSC 1326

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



J U D G M E N T

B.R. GAVAI, CJI

I. INTRODUCTION
1. By way of the present review petition, the petitioner
th
seeks recall of the judgment and final order dated 16 May
2025 passed by this Court in the case of Vanashakti v. Union
1
of India .
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
EC may have been granted in certain cases
post facto
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
2
Environment (Protection) Act, 1986 , read with clause (d) of sub-
3
rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 ,
the Central Government through the erstwhile Ministry of
Environment and Forest (now the Ministry of Environment,
4 th
Forest and Climate Change ) issued a notification dated 14
September 2006 being the Environment Impact Assessment

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


5
Notification 2006 . 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
6
through the State Environment Impact Assessment Authority
would be the regulatory authority. In the Schedule to the 2006
Notification, Categories ‘A’ and ‘B’ listed out various projects.
th
6. On 14 March 2017, another notification came to be
7
issued by the MoEF&CC . The said notification was issued in
order to provide a process for grant of Environmental
8
Clearance 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
9
Expert Appraisal Committees 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
10
undertaking Environment Impact Assessment 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.
11
9. It appears that the National Green Tribunal , Principal
Seat, New Delhi, in the case of Tanaji B. Gambhire v. Chief
12
Secretary, Government of Maharashtra and Others , vide
th
order dated 24 May 2021, inter-alia directed the MoEF&CC
13
to prepare a proper Standard Operating Procedure for grant
of EC in cases of violation of environment norms. In pursuance
to the said direction of the NGT, an Office Memorandum dated
th 14
7 July 2021 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
th
dated 13 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
th
petition. It further appears that vide order dated 14 March
2018 passed by the High Court of Judicature at Madras in
Appaswamy Real Estates Limited v. Puducherry
15
Environment Protection Association and Another , 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
th
judgment and order dated 30 August 2024 in the case of
16
Fatima v. Union of India quashed the 2021 OM and
th
another OM dated 19 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
17
and Others , Alembic Pharmaceuticals Limited v. Rohit
18
Prajapati and Others Electrosteel Steels Limited v.
and
19
Union of India and Others , 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
20
Pollution Control Board and Others and Pahwa Plastics
21
Private Limited and Another v. Dastak NGO and Others ,
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
th
Environment Policy as approved by the Union Cabinet on 18
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
th
notification dated 15 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
th
draft notification was published on 10 May 2016. The said
th
notification was made available to the public on 10 May 2016
and after considering all objections and suggestions received
in response to the said draft notification, the final notification
th
was issued on 14 March 2017.
30. The 2017 Notification noticed that the MoEF&CC had
th th
issued Office Memoranda dated 12 December 2012 and 27
June 2013 to establish a process for grant of EC in cases of
violation of environmental norms. However, the conditions laid
th
down under the OM dated 12 December 2012, in paragraph
No. 5(i) and 5(ii) were held to be illegal by the judgment and
th
order of the High Court of Jharkhand dated 28 November
2014 in the case of Hindustan Copper Limited v. Union of
22 th
India . Similarly, the NGT vide its order dated 7 July 2015
23
in S.P. Muthuraman v. Union of India and Another had
th th
also held that the OMs dated 12 December 2012 and 27

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-
24
Legal Action and Others v. Union of India and Others

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
th
order dated 24 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
25
Thirumulpad v. Union of India by one Rabi Das, the editor
of a daily newspaper called Ama Rajdhani . This Court had
th
issued notice on 6 November 2009 and the Central

25
I.A. Nos.2746-48 of 2009 in WP(C) No.202 of 1995.
20


26
Empowered Committee 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
th
submitted on 25 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
nd
Central Government had issued a notification on 22
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
th 27
effect of EIA Notification dated 27 January 1994 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. Common Cause
It is recorded in the case of (supra)
th
that after the report of the CEC dated 25 April 2014 was
considered, this Court in the case of Common Cause v. Union
28 th
of India passed a detailed interim order dated 16 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
st
deposited by them on or before 31 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
th
judgment and order dated 8 January 2016 passed by the
26

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
v. , (2017) 9 SCC 499] holds,
Cause Union of India
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

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

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
Alembic Pharmaceuticals Limited
the judgment in (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
th
was considering an order dated 16 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

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. Electrosteel Steels Limited
Paragraph 75 of (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.

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
Where the adverse
environmental factors.
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
th
order dated 10 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 v.
Tanaji B. Gambhire 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 S EIAA s 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
Alembic Pharmaceuticals Ltd.
case of (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.

46

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


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
rd
order dated 3 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

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

51

“ 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

“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 with that of a previously
ratio
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
JUR Common
in has rightly referred to paragraph 125 of
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

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
nd
Court in the present proceedings dated 2 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
nd
passed by this Court dated 2 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
36
Karnataka and Another :
“ 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

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
Municipal
recent judgments of this Court in the cases of
Corporation of Greater Mumbai and Others v. Pankaj
37
Babulal Kotecha and Others and Bindu Kapurea v.
38
Subhashish Panda and Others .
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
th
petition on 29 November 2012 before the Bombay High
Court.
131. During the pendency of the said petition, the
th
concerned Collector had issued post-facto sanction on 10
February 2014 approving the project. The High Court vide
rd
judgment and order dated 3 August 2018 allowed the writ
petition. Aggrieved thereby, the Municipal Corporation filed an
appeal by way of special leave before this Court.

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

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


J U D G M E N T

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:
1
Common Cause Vs. Union of India , Alembic Pharmaceuticals
2
Limited Vs. Rohit Prajapati and Electrosteel Steels Limited Vs.
3
Union of India . 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
4
State Pollution Control Board 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




5
Limited Vs. Dastak NGO 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
6
previous decision in the case of M.C. Mehta Vs. Union of India ,
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
7
Environment Protection Association Vs. Union of India . 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.
8
Puducherry Environment Protection Association , 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
9
and order dated 08.01.2016 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 clearance. This is contrary to both
ex post facto
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
th
Dictionary, 9 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
10
India Vs. Dhanwanti Devi , 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
11
Krishan Khosla 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




12
Satinder Singh Vs. Amrao Singh , 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.
13
30. In Jayant Verma Vs. Union of India , 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
14
in SBI Vs. Yasangi Venkateswara Rao . 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
th
English Law by Cross and Harris (4 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
15
Andolan wherein it was stated:
65. “Incuria” literally means “carelessness”. In practice
is taken to mean per ignoratium. The
per incuriam
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
16
Society Vs. Om Shree Thakurji Educational Society . 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




17
Association 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
18
Dr. Shah Faesal Vs. Union of India 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
19
Insurance Company Limited Vs. Pranay Sethi , 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.
20
Nayak 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
21
Rasool Vs. Union of India , 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.
22
State of Gujarat . 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
23
Constitution Bench in Union of India Vs. V. Sriharan , 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
24
Maharashtra 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 which
ratio decidendi
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
25
overruled vide Mukesh K. Tripathi Vs. LIC , 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
Government of Gujarat had no jurisdiction to
incuriam.
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

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
26
of India , 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 EC. Some
ex post facto
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
27
India 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 and and
Electrosteel, Pahwa D. Swamy
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 EC in environmental
ex post facto
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 rightly followed the correct ratio
Vanashakti
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 and , the latter coordinate Bench
Common Cause Alembic
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
28
Environment and Biodiversity Vs. Union of India , 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.
29
47. In a
Navtej Singh Johar Vs. Union of India ,
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

J U D G E M E N T

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,
1
Government of Maharashtra and Ors. , 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


2
I. Common Cause v. Union of India 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
3
& Ors. 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
4
India 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
5
Ors. 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
6
the Government 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
7
NGO and Ors. and D. Swamy v. Karnataka State
8
Pollution Control Board and Ors. followed
Electrosteel and found that closure of an industry
solely on the ground of want of prior EC would be
against public interest. El ectrosteel, 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
9
National Insurance Co. Ltd. v. Pranay Sethi .
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
10
Singh Johar and Ors. v. Union of India , 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