Supreme Court Decision Upholds Accountability After Acceptance of Ex-post Facto Consent to Establish

Supreme Court Decision Upholds Accountability After Acceptance of Ex-post Facto Consent to Establish

The Supreme Court has affirmed that establishments cannot embrace and reject an ex-post facto Consent to Establish (CTE) after acting upon it.

M/s Sweta Estate Pvt. Ltd., the appellant, embarked on a housing colony project in Gurgaon, procuring essential clearances and permits from relevant authorities. While the Ministry of Environment, Forest and Climate Change and the HSPCB initially approved environmental clearance (EC) and Consent to Establish (CTE) for the project, the appellant faced setbacks when their CTE renewal applications were declined in 2013 and 2015. Subsequently, the Board issued a show cause notice of closure, citing pertinent provisions of the Air and Water Acts.

In a subsequent turn of events, the appellant applied for environmental clearance (EC) to expand the housing project. Following this, the Chairman of the Board directed the prosecution of the appellant for offences under the Water Act and the Air Act, citing non-compliance and operation without obtaining Consent to Establish (CTE). Despite the subsequent grant of EC and ex-post facto CTE, with conditions attached to the prosecution, legal proceedings ensued as the appellant contested the approval of the prosecution.

The Appellate Authority, referencing the later grant of ex-post facto CTE, overturned the Chairman's approval. However, the Board contested the Appellate Authority's decision, leading to an appeal to the National Green Tribunal (NGT), which ruled in favour of the Board. The NGT stated that the EC granted in August 2017 did not condone the illegal construction that occurred from April 2012 to August 2017, as the earlier environmental clearance had expired in April 2012.

The division bench of the Supreme Court, consisting of Justices Abhay S. Oka and Sanjay Karol, underscored the principle that establishments cannot 'approbate and reprobate' after availing themselves of an ex-post facto Consent to Establish. The Court emphasised the duty of establishments to adhere to all relevant laws and regulations, even if they had previously operated without the required permits.

The Bench observed that the appellant neither challenged the Board's resolution of February 8, 2012 nor sought to modify condition no. 4 through the applicable provisions of the Water Act. Furthermore, no objection was raised to the Board's decision to grant an ex-post facto CTE, which included stipulations for addressing past infractions. Additionally, the appellant refrained from raising any concerns regarding condition no. 4 in the ex-post facto CTE issued on October 18, 2017, and instead acted upon it.

The Bench, therefore, determined that having acted upon the ex-post facto CTE, the appellant cannot simultaneously accept and reject it. As a result, the Bench considered the interference by the Appellate Authority in the judgment dated March 15, 2018, as illegal and unwarranted. Consequently, it concluded that there should be no interference with the impugned judgment of the NGT to that extent.

The Bench also noted that the National Green Tribunal (NGT) exceeded its jurisdiction by delving into matters beyond the narrow scope of the appeal. In particular, the NGT's considerations regarding the expiration of the previously granted Environmental Clearance on April 9, 2012, and the legality of construction conducted by the appellant between April 9, 2012, and August 29, 2017, were deemed inappropriate.

Consequently, the Bench determined that the portion of the impugned judgment related to these matters should be set aside, and the judgment and order interfering with the Appellate Authority's decision were upheld.