Establishments Cannot Approbate & Reprobate After Having Acted Upon Ex-Post Facto CTE: Supreme Court

The Supreme Court observed that an establishment cannot be allowed to approbate and reprobate having acted upon the ex-post facto Consent to Establish (CTE).

The Court observed thus considering an appeal filed by Sweta Estates Ltd against National Green Tribunal Order.

The Bench comprising Justice Abhay S. Oka and Justice Sanjay Karol observed, “The appellant did not challenge the Board’s decision dated 8th February 2012, authorising the Board to grant ex-post facto CTE, which clearly provided that simultaneously with the grant of ex-post facto CTE, action would be taken against the unit which violated the provisions of the Air/Water Acts by not obtaining prior CTE, as a past violation. It is pertinent to note that the appellant not only failed to make any grievance about condition no.4 in the ex-post facto CTE dated 18th October 2017 but acted upon the ex-post facto CTE”.

Senior Advocate Shyam Divan appeared for the Sweta Estates Ltd (Appellant) and Senior Additional Advocate General Lokesh Sinhal appeared for the Haryana State Pollution Board (HSPCB/Respondents).

Sweta Estates Pvt Ltd had failed to obtain the required Consent to Establish (CTE) under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (Air Act) and Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) from the HSPCB until 2017, despite having obtained environmental clearance (EC) from the Ministry of Environment, Forest and Climate Change in 2007. The HSPCB issued a show-cause notice to Sweta Estates in 2015 and approved prosecuting the company in 2017. However, the Ministry of Environment, Forest and Climate Change granted fresh EC to Sweta Estates in 2017, and the HSPCB granted ex-post facto CTE to the company in October 2017. The Appellate Authority allowed Sweta Estates' appeal against the HSPCB's approval to prosecute it, but the National Green Tribunal (NGT) quashed the Appellate Authority's order and upheld the HSPCB's approval. Sweta Estates challenged the judgment of the NGT before the Apex Court.

The Court noted in paragraph 12 of the impugned judgment that the environmental clearance granted in 2007 expired in 2012 and that the illegal construction carried out by Sweta from 2012 to 2017 could not be condoned by the fresh EC granted in 2017. The Court held that the NGT ought not to have gone into this issue as it was not in the scope of the appeal before it.

The Court observed that Sweta Estates was bound by condition no. 4 in the ex-post facto CTE granted in 2017, which provided that simultaneously with the grant of ex-post facto CTE, action would be taken against the unit that violated the provisions of the Air/Water Acts by not obtaining prior CTE, as a past violation.

The Bench noted, “While dealing with the appeal, NGT ought not to have gone into the issue of whether the EC granted earlier expired on 9th April 2012. Considering the limited scope of appeal, NGT ought not to have gone into the question of whether the construction carried out by the appellant between 9th April 2012 to 29th August 2017 was illegal. Therefore, what is held in paragraph 12 of the impugned judgment will have to be set aside”.

Furthermore, the Bench observed that Sweta Estates cannot be allowed to approbate and reprobate by first acting upon the ex-post facto CTE and then challenging the HSPCB's approval to prosecute it for past violations. Therefore, the Court affirmed the NGT's order allowing the HSPCB's appeal against the Appellate Authority's order.

Accordingly, the Court partly allowed the Appeal and set aside the observations of paragraph 12 of the impugned judgment.

Cause Title: M/s Sweta Estate Pvt. Ltd. Gurgaon v Haryana State Pollution Control Board & Anr. (2023 INSC 999)

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