Vanashakti vs. Union Of India

2025 INSC 718
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.1394 OF 2023
VANASHAKTI …PETITIONER
Vs.
UNION OF INDIA …RESPONDENT
WITH
WRIT PETITION (C) NO.118 OF 2019
WRIT PETITION (C) NO.115 OF 2024
AND
CIVIL APPEAL NO.381-382 OF 2025

J U D G M E N T
ABHAY S. OKA, J.
1. Part IV-A of the Constitution of India containing
fundamental duties as set out in Article 51A was
nd
incorporated in the Constitution by the 42 Amendment
rd
Act with effect from 3 January 1977. Clause (g) of
Article 51A provides that it shall be the duty of every
citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife,
Signature Not Verified
and to have compassion for living creatures. This Court
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.16
17:50:25 IST
Reason:
in several decisions has held that the right to live in a
Writ Petition (C) No. 1394 of 2023, etc. Page 1 of 41

pollution free atmosphere is a part of the fundamental
right guaranteed under Article 21 of the Constitution of
India.
The world changed rapidly after World War II. From
2.
the late 1960s and early 1970s, slowly there was a
realisation about the drastic consequences of the
destruction of environment and pollution of various
kinds. In June 1972, at Stockholm, the United Nations
Conference on Human Environment was held. In the said
conference, several decisions were taken by the world
community to protect the environment.
3. In our country, it took fourteen years thereafter for
the legislature to come out with a law for protection and
improvement of the environment. The Environment
(Protection) Act, 1986 (for short, ‘the 1986 Act’) was
th
brought into force with effect from 19 November 1986.
As can be noticed from several orders of this Court and
the High Courts, the progress of implementation of the
1986 Act has been very slow.
4. The 1970s and 1980s saw growth of
industrialisation in our country. The activities such as
mining, gas exploration, thermal power plants, petroleum
refining industries, various other industries, building and
construction projects, such as, highways started growing.
Writ Petition (C) No. 1394 of 2023, etc. Page 2 of 41

5. Again, it took twenty years after the 1986 Act came
into force to exercise the power under sub-section (1) and
clause (v) of sub-section (2) of Section 3 of the 1986 Act
read with clause (d) of sub-rule (3) of Rule 5 of the
Environment (Protection) Rules, 1986 (for short, ‘1986
Rules’) for coming out with the Environment Impact
Assessment Notification, 2006 (for short, ‘the EIA
notification’). The EIA notification was issued on 14th
September 2006. It provided that the projects or activities
mentioned in clause (2) thereof shall require prior
Environmental Clearance (for short, ‘the EC’) from the
concerned regulatory authority. The concerned regulatory
authority in the Central Government is the Ministry of
Environment Forests and Climate Change (for short, ‘the
MoEFCC’) for matters falling under Category ‘A’ in the
Schedule, and at the State level, the State Environment
Impact Assessment Authority (for short, ‘the SEIAA’) for
the matters falling in Category ‘B’. In the Schedule,
Categories ‘A’ and ‘B’ were incorporated setting out
industries and other development work. The entire
controversy in this group of petitions is about ex post
facto grant of EC.
6. On 14th March 2017, a notification was issued by
the MoEFCC. The said notification is hereafter referred
to as ‘the 2017 notification’. The said notification was
made applicable to the projects or activities that have
Writ Petition (C) No. 1394 of 2023, etc. Page 3 of 41

started the work on site, expanded the production beyond
the limit of the EC, or changed the production mix
without obtaining EC. The 2017 notification provided
that in case of such works, ex post facto EC can be
granted. It provided that the projects or activities which
are in violation of the EIA notification as on 14th March
2017 were eligible to apply under the 2017 notification
for ex post facto EC within a period of six months from
14th March 2017.
7. The National Green Tribunal (for short, ‘the NGT’)
vide order dated 24th May 2021 directed the MoEFCC to
prepare a Standard Operating Procedure (for short, ‘the
SOP’) for grant of EC in the cases of violation so as to
address the gap in the binding law and practice being
currently followed. In purported compliance with the said
direction, Office Memorandum dated 7th July 2021 (for
short, ‘the 2021 OM’) was issued.
8. In the meanwhile, the 2017 notification was
challenged by way of a writ petition before the High Court
of Madras in the case of Puducherry Environment
1
Protection Association v. Union of India , which was
decided by order dated 13th October 2017. During the
course of hearing of the case before the Madras High
Court, when it was pointed out that the outer limit for
making applications for grant of ex post facto EC have
1 2017 SCC OnLine Mad 7056
Writ Petition (C) No. 1394 of 2023, etc. Page 4 of 41

been repeatedly extended, the Union of India gave a
categorical undertaking that the 2017 notification was
only a one-time measure. By recording the said
submission made on behalf of the Union of India that the
2017 notification was certainly and clearly only a one
time measure, the High Court disposed of the petition.
Later on, by order dated 14th March 2018 passed by the
High Court of Madras in another case, the time period
under the 2017 notification for submission of proposals
by project proponents was extended by a further period of
thirty days.
9. In Writ Petition (C) No.1394 of 2023, the first prayer
is for quashing the 2021 OM on the ground that it was
arbitrary, illegal and ultra vires the provisions of the
1986 Act. The second prayer is for issuing a writ of
mandamus directing the MoEFCC and SEIAA/SEACs not
to process and entertain any application for ex-post facto
EC after 13th May 2018. As stated earlier, the time
granted under the 2017 notification to apply was lastly
extended till 13th April 2018.
10. In Writ Petition (C) No.118 of 2019, the challenge is
to the 2017 notification issued by the MoEFCC. A prayer
was made seeking directions to the respondents to
produce a list of real estate projects and project
proponents who have undertaken real estate development
Writ Petition (C) No. 1394 of 2023, etc. Page 5 of 41

projects without obtaining EC under the 2006
notification.
11. In Writ Petition (C) No.115 of 2024, the challenge is
to the 2017 notification and the 2021 OM. A prayer for
writ of prohibition is made for restraining the MoEFCC
from issuing any notification or office memorandum
permitting ex-post facto EC.
12. The High Court of Madras by judgment and order
dated 30th August 2024 quashed the 2021 OM and
another OM dated 19th February 2021. The challenge in
Civil Appeal No.381-382 of 2025 is to this decision of the
High Court of Madras. In the judgment and order dated
30th August 2024, the Madras High Court declared that
its order will operate only prospectively and applications
under consideration will remain unaffected. The
challenge in this appeal is only to the extent of giving
prospective effect to the impugned judgment.
THE EIA NOTIFICATION
13. Firstly, we come to the EIA notification. It has been
issued in exercise of powers under sub-Section (1) and
clause (v) of sub-Section (2) of Section 3 of the 1986 Act
read with clause (d) of sub-Rule (3) of Rule 5 of the 1986
Rules. Section 3 of the 1986 Act reads thus:
“3. Power of Central Government to take
measures to protect and improve
environment.—(1) Subject to the provisions
Writ Petition (C) No. 1394 of 2023, etc. Page 6 of 41

Writ Petition (C) No. 1394 of 2023, etc. Page 7 of 41

environmental pollutants from such
sources;
( v ) 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;
( vi ) laying down procedures and
safeguards for the prevention of accidents
which may cause environmental pollution
and remedial measures for such accidents;
( vii ) laying down procedures and
safeguards for the handling of hazardous
substances;
( viii ) examination of such manufacturing
processes, materials and substances as are
likely to cause environmental pollution;
( ix ) carrying out and sponsoring
investigations and research relating to
problems of environmental pollution;
( x ) inspection of any premises, plant,
equipment, machinery, manufacturing or
other processes, materials or substances
and giving, by order, of such directions to
such authorities, officers or persons as it
may consider necessary to take steps for the
prevention, control and abatement of
environmental pollution;
( xi ) establishment or recognition of
environmental laboratories and institutes to
carry out the functions entrusted to such
environmental laboratories and institutes
under this Act;
Writ Petition (C) No. 1394 of 2023, etc. Page 8 of 41

( xii ) collection and dissemination of
information in respect of matters relating to
environmental pollution;
( xiii ) preparation of manuals, codes or
guides relating to the prevention control and
abatement of environmental pollution;
( xiv ) such other matters as the Central
Government deems necessary or expedient
for the purpose of securing the effective
implementation of the provisions of this Act.
(3) The Central Government may, if it
considers it necessary or expedient so to do
for the purposes of this Act, by order,
published in the Official Gazette, constitute
an authority or authorities by such name or
names as may be specified in the order for
the purpose of exercising and performing
such of the powers and functions (including
the power to issue directions under Section
5) of the Central Government under this Act
and for taking measures with respect to
such of the matters referred to in sub-
section (2) as may be mentioned in the order
and subject to the supervision and control
of the Central Government and the
provisions of such order, such authority or
authorities may exercise the powers or
perform the functions or take the measures
so mentioned in the order as if such
authority or authorities had been
empowered by this Act to exercise those
powers or perform those functions or take
such measures.”
(emphasis added)
Writ Petition (C) No. 1394 of 2023, etc. Page 9 of 41

13.1 Sub-section (1) of Section 3 sums up the very
object of the 1986 Act. Therefore, the EIA notification has
been issued not only for the purposes of protecting and
improving the quality of the environment but also for
preventing and abating environmental pollution. Sub-
section (1) of Section 3 confers general power of taking
measures on the Central Government. Sub-section (2)
confers specific power for taking measures in the matters
set out in clauses (i) to (ix) thereof. Clause (v) of sub-
section (2) of Section 3 empowers the Central
Government to take measures for putting restrictions of
areas in which any industries, operations or processes
shall not be carried out or shall be carried out subject to
safeguards.
14. Rule 5 of the 1986 Rules reads thus:
“5. Prohibition and restriction on the
location of industries and the carrying on
of processes and operations in different
areas .—(1) The Central Government may
take into consideration the following factors
while prohibiting or restricting the location
of industries and carrying on of processes
and operations in different areas:
i
( ) Standards for quality of environment in
its various aspects laid down for an area.
( ii ) The maximum allowable limits of
concentration of various environmental
pollutants (including noise) for an area.
Writ Petition (C) No. 1394 of 2023, etc. Page 10 of 41

( iii ) The likely emission or discharge of
environmental pollutants from an industry,
process or operation proposed to be
prohibited or restricted.
( iv ) The topographic and climatic features
of an area.
( v ) The biological diversity of the area
which, in the opinion of the Central
Government needs to be preserved.
( vi ) Environmentally compatible land use.
( vii ) Net adverse environmental impact
likely to be caused by an industry, process
or operation proposed to be prohibited or
restricted.
( viii ) Proximity to a protected area under
the Ancient Monuments and Archaeological
Sites and Remains Act, 1958 or a sanctuary,
National Park, game reserve or closed area
notified as such under the Wild Life
(Protection) Act, 1972 or places protected
under any treaty, agreement or convention
with any other country or countries or in
pursuance of any decision made in any
international conference, association or
other body.
( ix ) Proximity to human settlements.
( x ) Any other factor as may be considered
by the Central Government to be relevant to
the protection of the environment in an area.
(2) While prohibiting or restricting the
location of industries and carrying on of
processes and operations in an area, the
Writ Petition (C) No. 1394 of 2023, etc. Page 11 of 41

Central Government shall follow the
procedure hereinafter laid down.
(3) ( a ) Whenever it appears to the Central
Government that it is expedient to impose
prohibition or restrictions on the location of
an industry or the carrying on of processes
and operations in an area, it may, by
notification in the Official Gazette and in
such other manner as the Central
Government may deem necessary from time
to time, give notice of its intention to do so.
( b ) Every notification under clause ( a ) shall
give a brief description of the area, the
industries, operations, processes in that
area about which such notification pertains
and also specify the reasons for the
imposition of prohibition or restrictions on
the location of the industries and carrying
on of processes or operations in that area.
( c ) Any person interested in filing an
objection against the imposition of
prohibition or restrictions on carrying on of
processes or operations as notified under
clause ( a ) may do so in writing to the
Central Government within sixty days from
the date of publication in the notification in
the Official Gazette.
( d ) The Central Government shall within a
period of one hundred and twenty days from
the date of publication of the notification in
the Official Gazette consider all the
objections received against such notification
and may [within [seven hundred and
twenty-five days [,and in respect of the
States of Assam, Meghalaya, Arunachal
Writ Petition (C) No. 1394 of 2023, etc. Page 12 of 41

Pradesh, Mizoram, Manipur, Nagaland,
Tripura, Sikkim and Jammu and Kashmir
in exceptional circumstance and for
sufficient reasons within a further period of
one hundred and eighty days,]] from such
date of publication] impose prohibition or
restrictions on location of such industries
and the carrying on of any process or
operation in an area:
[Provided that on account of COVID-19
pandemic, for the purpose of this clause, the
period of validity of the notification expiring
in the financial year 2020-2021 and 2021-
2022 shall be extended up to [30th June,
2022] or six months from the end of the
month when the relevant notification would
have expired without any extension,
whichever is later.]
[(4) Notwithstanding anything contained in
sub-rule (3), whenever it appears to the
Central Government that it is in public
interest to do so, it may dispense with the
requirement of notice under clause ( a ) of
sub-rule (3).]”
14.1 For issuing the EIA notification, power has been
exercised under clause (d) of sub-rule (3) of Rule 5 which
empowers the Central Government to impose prohibition
or restrictions on location of such industries and the
carrying on any process or operation in an area. There is
a power to impose complete prohibition on carrying on
any process or operation in an area. Clause (2) of the EIA
notification reads thus:
Writ Petition (C) No. 1394 of 2023, etc. Page 13 of 41

“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 referred to
be 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
minerals in the 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 with
addition of capacity beyond the limits
specified for the concerned sector in the
said Schedule, subject to conditions and
procedure provided in the sub-paragraph
(ii) of paragraph 7. ”
Therefore, without prior EC, construction of new
14.2
projects or activities, expansion or modernisation of
existing projects or activities listed in the Schedule
entailing capacity addition with change in process or
Writ Petition (C) No. 1394 of 2023, etc. Page 14 of 41

technology, cannot be undertaken. Entire procedure for
grant of prior EC is laid down in the EIA notification.
LEGALITY OF THE 2017 NOTIFICATION
th
The 2017 notification refers to the OMs dated 12
15.
th
December 2012 and 27 June 2013 by which a process
was sought to be established for grant of EC in the cases
of violation of the EIA notification. It also refers to the
judgment of the High Court of Jharkhand holding these
two OMs as illegal. The same OMs were also quashed by
the NGT as mentioned in the said notification. There are
three recitals in the said notification which are relevant.
Recital Nos.9 to 11 read thus:
“9. And whereas, the Ministry of
Environment, Forest and Climate Change
and State Environment Impact
Assessment Authorities have been
receiving certain proposals under the
Environment Impact Assessment
Notification, 2006 for grant of Terms of
References and Environmental Clearance
for projects which have started the work
on site, expanded the production beyond
the limit of environmental clearance or
changed the product mix without
obtaining prior environmental clearance;
10. Whereas, the Ministry of
Environment, Forest and Climate
Change deems it necessary for the
purpose of protecting and improving
Writ Petition (C) No. 1394 of 2023, etc. Page 15 of 41

the quality of the environment and
abating environmental pollution that
all entities not complying with
environmental regulation under
Environment Impact Assessment
Notification, 2006 be brought under
compliance with in the environmental
laws in expedient manner;
11. And whereas, the Ministry of
Environment, Forest and Climate Change
deems it necessary to bring such projects
and activities in compliance with the
environmental laws at the earliest point
of time, rather than leaving them
unregulated and unchecked, which will
be more damaging to the environment
and in furtherance of this objective, the
Government of India deems it essential to
establish a process for appraisal of such
cases of violation for prescribing
adequate environmental safeguards to
entities and the process should be such
that it deters violation of provisions of
Environment Impact Assessment
Notification, 2006 and the pecuniary
benefit of violation and damage to
environment is adequately compensated
for; ”
Thus, what was sought to be done was to protect
15.1
the project proponents who committed gross illegality by
commencing construction or commencing operation or
process without obtaining prior EC as provided in the
Writ Petition (C) No. 1394 of 2023, etc. Page 16 of 41

EIA notification. The 2017 notification was a one-time
measure. Moreover, this Court in the case of
Common
2
Cause v Union of India & Ors. , held in no uncertain
terms that the concept of ex post facto or retrospective EC
is completely alien to environmental jurisprudence
including the EIA notification. The decision in the case of
2 nd
Common Cause was delivered on 2 August 2017.
Notwithstanding the clear declaration of law which was
nd
made on 2 August 2017, the Central Government did
not withdraw the 2017 notification.
16. We may note here that this is not the first time that
the concept of prior EC was brought into force. For this
purpose, useful reference can be made to a decision of
this Court in the case of Alembic Pharmaceuticals v.
3
Rohit Prajapati . It records that there was a notification
th
of 27 January 1994 mandating prior EC for setting up
and expansion of industrial projects falling within thirty
categories. The issue before this Court was about the
th
legality and validity of the circular dated 14 May 2002,
which permitted obtaining of ex post facto EC. This Court
specifically dealt with the challenge to the circular dated
th
14 May 2002. In paragraph 12, this Court noted the
issue to be decided:
“ 12. The issue to be adjudicated is whether
in view of the requirement of a prior EC
2 2017 (9) SCC 499
3 2020 (17) SCC 157
Writ Petition (C) No. 1394 of 2023, etc. Page 17 of 41

under the EIA Notification of 1994, a
provision for an ex post facto EC to
industrial units could be validly made by
means of the Circular dated 14-5-2002.”
16.1 Thereafter, this Court considered Section 3(1) of the
1986 Act. In paragraph 21 this Court held thus:
“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 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
Writ Petition (C) No. 1394 of 2023, etc. Page 18 of 41

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
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
Writ Petition (C) No. 1394 of 2023, etc. Page 19 of 41

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.”
(emphasis added)
16.2 Ultimately, in paragraph 23, this Court held thus:
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
Writ Petition (C) No. 1394 of 2023, etc. Page 20 of 41

in Common Cause [ Common
Cause v. Union of India , (2017) 9 SCC
499] holds, detrimental to the
environment and could lead to
irreparable degradation. The reason why a
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.”
(emphasis added)
Writ Petition (C) No. 1394 of 2023, etc. Page 21 of 41

16.3 In fact, as noted in paragraph 22.1, the word ‘prior’
th
was not used in the EIA notification dated 27 January
1994. However, the words ‘shall not be undertaken’ were
used. In the 2006 EIA notification, the word ‘prior’
appears at multiple places.
17. The issue of ex post facto EC was dealt with in the
2
case of Common Cause , In paragraph 108, a
submission was recorded that the possibility of getting ex
post facto EC was a signal to the mining leaseholders that
obtaining an EC was not mandatory or that if it was not
obtained, the default was retrospectively condonable. In
paragraph 125, this Court held thus:
“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 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
Writ Petition (C) No. 1394 of 2023, etc. Page 22 of 41

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.”
(emphasis added)
18. Therefore, there is already a concluded finding of
this Court that the concept of ex post facto or
retrospective EC is completely alien to environmental
jurisprudence and the EIA notification. This view was
reiterated by this Court in the case of Electrosteel Steels
4
,. In paragraph 72, this
Ltd. v. Union of India and Ors.
Court held thus:
“ 72. There can be no doubt that the need
to comply with the requirement to obtain
environment clearance is non-negotiable.
A project can be set up or allowed to expand
subject to compliance of the requisite norms.
Environmental clearance is granted on
condition of the suitability of the site to set
up the project from the environmental angle,
and existence of necessary infrastructural
facilities and equipment for compliance of
environmental norms. To protect future
generations, it is imperative that pollution
laws be strictly enforced. Under no
circumstances, can industries which pollute
4
(2023) 6 SCC 615
Writ Petition (C) No. 1394 of 2023, etc. Page 23 of 41

be allowed to operate unchecked and
degrade the environment.”
(emphasis added)
18.1 In this case, as well as in the case of Alembic
3
, this Court exercised its jurisdiction
Pharmaceuticals
under Article 142 of the Constitution and permitted ex
post facto EC in particular cases considering the peculiar
factual situation.
19. It is in this context that the legality and validity of
the 2017 notification will have to be tested. Interestingly,
in paragraph 10 of the notification, it is recorded that the
MoEFCC deems it necessary for the purpose of protecting
and improving the quality of environment and abating
environmental pollution that all the entities not
complying with the environmental regulation under EIA
notification be brought under compliance within the
environmental laws in an expeditious manner. The object
of protecting and improving the environment and
preventing and abating environmental pollution was
achieved by the EIA notification. The object of the 2017
notification appears to be to protect the industries and
entities which violated the EIA notification. In fact,
paragraph 14 of the 2017 notification is material which
reads thus:
“ 14 . The projects or activities which are in
violation as on date of this notification only
will be eligible to apply for environmental
Writ Petition (C) No. 1394 of 2023, etc. Page 24 of 41

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.”
20. Moreover, the 2017 notification is completely in
violation of the law laid down by this court in the case of
2 3
and . From
Common Cause Alembic Pharmaceuticals
the recitals of the 2017 notification, it is apparent that it
was a one-time measure to protect those who were in
violation as on the date of the 2017 notification. In view
of the settled law, even a ‘one-time measure’ or ‘one-time
relaxation’ was illegal. The 2021 OM encourages the
entities who contributed to pollution by not obtaining
prior EC. Whenever EC is granted, it is always
conditional. Certain conditions are imposed to abate or
reduce the pollution. Such one-time measures add to air
and/or water pollution. Such measures infringe the right
to live in a pollution free environment guaranteed by
Article 21. Thus, the 2017 notification was completely
illegal.
21. The Division bench of Madras High Court by
th
judgment dated 13 October 2017, in the case of
1
Puducherry Environment Protection Association
dealt with the issue regarding the legality of the 2017
notification which was subject matter of challenge in a
Public Interest Litigation. A very specific submission was
Writ Petition (C) No. 1394 of 2023, etc. Page 25 of 41

made before the Madras High Court on behalf of the
Central Government by the learned Additional Solicitor
General, which is recorded in paragraph 4(i) of the
judgment. Relevant portion of paragraph 4(i) 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 .
………………………………………………………”
(emphasis added)

21.1 This statement was treated as an undertaking of the
Central Government, which is clear from paragraph 4(n)
of the said judgment:
“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. ”
(emphasis added)
Writ Petition (C) No. 1394 of 2023, etc. Page 26 of 41

21.2 It is in view of this undertaking that the High Court
did not interfere. The Central Government is bound by
this undertaking. It is the duty of the Central
Government to comply with the undertaking in its true
letter and spirit.
22. The period provided in the 2017 notification to
th
apply for ex-post facto EC ended on 13 September 2017.
In the case of Appaswamy Real Estates Limited v.
5
Puducherry Environment Protection Association , the
request of the MoEFCC for extending the time provided in
the 2017 notification was accepted. As a result, the OM
th
dated 16 March 2018 was issued which permitted the
project proponents to apply under the 2017 notification
within thirty days from the date of the High Court order.
What is pertinent to note is that notwithstanding the
grant of extension of time to apply, there was no
modification made to paragraph 14 of the 2017
notification which clarified that it is applicable only to
those projects and activities which were in violation on
the date of the said notification. Therefore, any project or
activity or process which required EC under the EIA
th
notification commenced after 14 March 2017 was not
protected by the 2017 notification.
23. Apart from the fact that the very concept of grant of
ex-post facto EC is illegal, it is not possible to understand
5
2018 SCC OnLine Mad 1283
Writ Petition (C) No. 1394 of 2023, etc. Page 27 of 41

why the Central Government made efforts to protect
those who committed illegality by not obtaining prior EC
in terms of the EIA notification. As the EIA notification
was eleven years old when the 2017 notification was
issued, there was no equity in favour of those who
committed such gross illegality of not obtaining prior EC.
The persons who acted without prior EC were not
illiterate persons. They were companies, real estate
developers, public sector undertakings, mining
industries, etc. They were the persons who knowingly
committed illegality. We, therefore, make it clear that
hereafter, the Central Government shall not come out
with a new version of the 2017 notification which
provides for the grant of ex-post facto EC in any manner.
LEGALITY AND VALIDITY OF THE 2021 OM
SUBMISSIONS
24. The learned senior counsel appearing for the
Petitioner submitted that post a series of judgments of
3 2
this Court in Alembic and Common Cause , it is not
permissible to grant ex post facto EC. He further submits
that the 2021 OM is in violation of the 1986 Act and the
EIA notification. He submits that EC must be prior and
cannot be granted ex post facto . While the 2021 OM does
not expressly extend the timeline under the 2017
notification or mention ex post facto , the 2021 OM and its
Writ Petition (C) No. 1394 of 2023, etc. Page 28 of 41

application has effectively allowed grant of ex post facto
EC.
25. The main submission of the learned Additional
Solicitor General is that the 2021 OM does not seek to
grant ex-post facto EC. It is only an SOP. The learned
ASG invited our attention to the contents of the SOP. Her
submission is that it provides for the demolition of
projects not allowable or permissible for want of EC. It
also provides for the closure of projects
allowable/permissible, if prior EC has not been taken as
per the EIA notification. She submitted that even if EC is
granted, it will be effective from the date of the issue, and
therefore, it is not ex post facto . She submitted that before
such EC is granted, the project proponent will have to
pay certain amounts as provided therein based on
Polluter Pays Principle. Moreover, the project proponents
will have to undertake activities relating to remedial plan
and community accommodation plan. She also pointed
out that the projects which are not allowable or
permissible, shall be demolished. She also pointed out
provisions regarding penalty, project proponents
furnishing bank guarantee, etc. Thus, in short, her
submission is that the object of the 2021 OM is to protect
those projects and industries which could have been
granted an EC under EIA notification before the date of
commencement of activities, but proceeded to commence
Writ Petition (C) No. 1394 of 2023, etc. Page 29 of 41

activities without EC. Her submission is that this
measure has been taken to ensure that the huge
spending on constructions is not lost and wasted.
OUR VIEW
26. The basic submission by learned ASG is based on a
premise that what is provided under the 2021 OM is not
grant of ex-post facto EC. The relevant part of the 2021
OM is in paragraph 10 and 11, which read thus:
“10.Standard Operating Procedure-Guiding
Principles:
i. Without prejudice to any other
consequences , action has to be initiated
under section 15 read with section 19 of
The Environment (Protection) Act, 1986
against all violations .
ii. Projects not allowable/permissible, for
grant of EC, as per extant regulations: 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 has been taken) or to revert to
permitted production level (in case prior
EC has been granted) .
iv. Polluter pays : Violators to pay for violation
period proportionate to the scale of project
and extent of commercial transaction.
v. Setting up a mechanism for reporting of
violation to the regulatory authority(ies).
11. SOP for dealing with the violation
cases:
Writ Petition (C) No. 1394 of 2023, etc. Page 30 of 41

Step 1: Closure or Revision

Step 2: Action under Environment
(Projection) Act, 1986
Action under section 15 read with section 19
of the Environment (Protection) Act, 1986
shall be initiated against the violators.
Step: 3: Appraisal under EIA Notification,
2006
The permissibility of the project shall be
examined from the perspective of whether
such activity/project was at all eligible for the
grant of prior EC.
A. If not permissible:
i. The project shall be ordered for the
demolition/closure after issuing show
cause notice and providing an opportunity
of hearing .
Ex. If a red industry is functioning in a CRZ-I
area which means that the activity was, in the
first place, not permitted at the time of
Writ Petition (C) No. 1394 of 2023, etc. Page 31 of 41

commencement of project. Therefore, the
activity is not permissible and therefore it shall
be closed & demolished .
ii. Respective regulatory authorities shall
issue directions under section 5 of the
Environment (Protection) Act, 1986 for such
closure & demolition of the project/activity.
B. If permissible:
i. As per extant regulations at the time of
scoping, if it is viewed that the project activity
is otherwise permissible, Terms of Reference
(TOR) shall be issued with directions to
complete the impact assessment studies &
submit Environmental Impact Assessment
(EIA) report & Environmental Management
Plan (EMP) in a time bound manner.
ii. Such cases of violation shall be subject to
appropriate
(a) Damage Assessment
(b) Remedial Plan and
(c) Community Augmentation Plan by
the Central Level Sectoral Expert Appraisal
Committees or State/Union Territory Level
Expert Appraisal Committees, as the case
may be.
iii. The Competent Authority shall issue
directions to the project proponent, under
section 5 of the Environment (Protection) Act,
1986 on case to case basis mandating
payment of such amount (as may be
determined based on Polluter Pays principle)
and undertaking activities relating to
Remedial Plan and Community Augmentation
Plan (to restore environmental damage
caused including its social aspects).
Writ Petition (C) No. 1394 of 2023, etc. Page 32 of 41

iv. Upon submission of the EIA & EMP report,
the project shall be appraised by the Central
Sectoral Expert Appraisal Committees or the
State/Union Territory Level Expert Appraisal
Committees, as the case may be, as if it was a
new proposal. If, on examination of the
EIA/EMP report, the project is considered
permissible for operation as per extant
regulations, the requisite Environmental
Clearance shall be issued which shall be
effective from the date of issue.
v. However, 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 would be environmentally
sustainable.
vi. If, however, it is not considered
appropriate to issue EC, the project shall be
directed to be demolished/ closed. If such
proposal is a case of expansion, the project
shall be directed to revert back to the
extent of activity for which EC had been
granted earlier or to revert back to the
extent of activity for which EC was not
required (as the case may be).
vii. Central Sectoral Expert Appraisal
Committees or the State/Union Territory
Level Expert Appraisal Committees, as the
case may be, may insist upon public hearing
to be conducted for such categories of
projects for which the EIA Notification 2006,
as amended from time to time, requires the
public hearing to be conducted.
viii. The project proponent will be required to
submit a bank guarantee equivalent to the
Writ Petition (C) No. 1394 of 2023, etc. Page 33 of 41

amount of Remediation Plan and Natural &
Community Resource Augmentation Plan
with Central / the State Pollution Control
Board (depending on whether it is
appraised at Ministry or by SEIAA). The
quantification of such liability will be
recommended by Expert Appraisal Committee
and finalized by Regulatory Authority. The
bank guarantee shall be deposited prior to
the grant of environmental clearance and will
be released after successful
implementation of the Remediation Plan
and Natural & Community Resource
Augmentation Plan.”
27. In short, it provides for grant of EC to category of
‘allowable/permissible’ projects. We must remember that
the 2021 OM is applicable even to the completed projects.
The 2021 OM says that grant of EC to such projects shall
be effective from the date of issue. If the project
proponent goes ahead with construction which requires
EC under the EIA notification, it will amount to violation
of the provisions of 1986 Act and 1986 Rules. It will
attract penalty under Section 15 of the 1986 Act. 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.
Writ Petition (C) No. 1394 of 2023, etc. Page 34 of 41

28. Now, we will consider what is the meaning of “ ex
post facto” . Various dictionary meanings can be
summarised as under:
a) Having retrospective effect or force;
b) From a thing done afterwards;
c) Retroactive or affecting something that has already
happened.
29. Now, we will take a case of ex post facto EC provided
under the 2017 notification. The effect of grant of ex post
facto clearance is that if without obtaining EC,
construction is in progress, the same is allowed to
continue. If the construction is complete and operation
and processes are going on, the same can go on after ex
post facto EC is granted. Effect of grant of EC under
clause (11) of 2021 OM will be grant of permission to
complete the construction of the project, though
construction had commenced without prior EC. Where
the construction is already complete which is being used
for processes etc., by grant of EC, the process/activities
can continue. Thus, in effect, the EC granted under
clause (11) of 2021 OM regularises something which was
illegal with retrospective effect. In effect, the EC granted
under clause (11) of 2021 OM will regularise the illegality
done by commencing the construction or commencing
the project without prior EC. Therefore, in substance,
what is provided is grant of ex post facto EC. In other
Writ Petition (C) No. 1394 of 2023, etc. Page 35 of 41

words what is granted is EC with retrospective effect as it
regularises illegality committed earlier. The grant of EC
under the 2021 OM, no doubt, is subject to making
payment of compensation determined based on Polluter
Pays Principle and undertaking activities relating to
remedial plan. Once there is a violation of the EIA
notification, the project proponent has to compensate
following the Polluter Pays Principle. Even if, EC is not
granted to him he has to pay for remedial plan to remedy
the damage done to the environment. He has to also pay
the penalty under Section 15 of the 1986 Act. Therefore,
what is done by the 2021 OM is something which was
completely prohibited by this Court in the cases of
2 3
Common Cause and Alembic Pharmaceuticals . It is
an attempt to bring in an ex - post facto or retrospective
regime by craftily drafting the SOP. The grant of EC
under the 2021 OM in substance and in effect amounts
to ex post facto grant of EC. The Court must come down
very heavily on the attempt of the Central Government to
do something which is completely prohibited under the
law. Cleverly, the words ex post facto have not been used,
but without using those words, there is a provision to
effectively grant ex post facto EC. The 2021 OM has been
issued in violation of the decisions of this Court in the
2
cases of and
Common Cause Alembic
3
Pharmaceuticals . Therefore, we have no manner of
Writ Petition (C) No. 1394 of 2023, etc. Page 36 of 41

doubt that the 2021 OM which permits grant of EC is
completely arbitrary and illegal. Moreover, the 2021 OM
does not refer to exercise of any power under the 1986
Act or the 1986 Rules.
30. There is one more aspect which is required to be
noted. As per paragraph 14 of the 2017 notification,
provision for grant of ex post facto EC was made only in
relation to projects or activities which were in violation as
th
ex post facto
of 14 March 2017. Therefore, grant of
clearance was not permitted under 2017 notification for
the projects and activities which were commenced or
th
continued after 14 March 2017. The window which was
initially for a period of six months was eventually
th
extended till completion of 30 days from 14 March 2018.
Therefore, the 2021 OM is brought in to do something
which was not permissible under the 2017 notification,
the law laid down by this Court, and the solemn
undertaking given by the Central Government to the
Madras High Court. We must deprecate such effort on the
part of the Central Government.
th
31. The EIA notification is of 14 September 2006.
When the 2021 OM was issued, it was nearly 15 years
old. Therefore, all project proponents were fully aware of
the stringent requirements under the EIA notification.
The 2021 OM seeks to protect the violations of the EIA
notification which have taken place or continue to take
Writ Petition (C) No. 1394 of 2023, etc. Page 37 of 41

place 15 years after the EIA notification came into force.
Thus, the 2021 OM seeks to protect violators who have
acted with full knowledge of consequences of violating the
EIA notification. Those who violate the law regarding
obtaining prior EC are not only committing gross
illegality, but they are acting against the society at large.
The violation of the condition of obtaining prior EC must
be dealt with heavy hands. In environmental matters,
the Courts must take a very strict view of the violations
of the laws relating to the environment. It is the duty of
the Constitutional Courts to do so.
32. Under Article 21 of the Constitution of India, the
right to live in a pollution free environment is guaranteed.
In fact, the 1986 Act has been enacted to give effect to
this fundamental right. In 1977, fundamental duties of
all citizens were incorporated in the Constitution which
enjoined every citizen of India to protect and improve the
environment as provided in clause (g) of Article 51A.
Therefore, even the Central Government has a duty to
protect and improve the natural environment.
33. Today, in the year 2025, we have been experiencing
the drastic consequences of large-scale destruction of
environment on human lives in the capital city of our
country and in many other cities. At least for a span of
two months every year, the residents of Delhi suffocate
due to air pollution. The AQI level is either dangerous or
Writ Petition (C) No. 1394 of 2023, etc. Page 38 of 41

very dangerous. They suffer in their health. The other
leading cities are not far behind. The air and water
pollution in the cities is ever increasing. Therefore,
coming out with measures such as the 2021 OM is
violative of fundamental rights of all persons guaranteed
under Article 21 to live in a pollution free environment. It
also infringes the right to health guaranteed under
Article 21 of the Constitution.
The 2021 OM talks about the concept of
34.
development. Can there be development at the cost of
environment? Conservation of environment and its
improvement is an essential part of the concept of
development. Therefore, going out of the way by issuing
such OMs to protect those who have caused harm to the
environment has to be deprecated by the Courts which
are under a constitutional and statutory mandate to
uphold the fundamental right under Article 21 and to
protect the environment. In fact, the Courts should come
down heavily on such attempts. As stated earlier, the
2021 OM deals with project proponents who were fully
aware of the EIA notification and who have taken
conscious risk to flout the EIA notification and go ahead
with the construction/continuation/expansion of
projects. They have shown scant respect to the law and
their duty to protect the environment. Apart from
violation of Article 21, such action is completely arbitrary
Writ Petition (C) No. 1394 of 2023, etc. Page 39 of 41

which is violative of Article 14 of the Constitution of India
besides being violative of the 1986 Act and the EIA
notification.
We are, however, conscious of the fact that ex post
35.
facto EC may have been granted in certain cases both
under the 2017 notification and the 2021 OM. 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.
Writ Petition (C) No. 1394 of 2023, etc. Page 40 of 41

37. The writ petitions and civil appeals are accordingly
allowed on the above terms.
………………………..J.
(Abhay S. Oka)
………………………..J.
(Ujjal Bhuyan)
New Delhi;
May 16, 2025
Writ Petition (C) No. 1394 of 2023, etc. Page 41 of 41