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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7222   of 2016 (Arising out of SLP (Civil) No.16860 of 2012)

M/s Electrotherm (India) Ltd.          ….Appellant

Versus

Patel Vipulkumar Ramjibhai & Ors.   …. Respondents

J U D G M E N T  

Uday Umesh Lalit, J.

1. Leave granted.

2. This  appeal  challenges  the  judgment  and  order  dated  11.05.2012

passed  by  the  High  Court  of  Gujarat  allowing Special  Civil  Application

No.5986/2010 setting aside the Environmental Clearance dated 27.01.2010

and  directing  that  the  operations  of  the  entire  plant  of  the  Appellant  be

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stopped  and  that  the  operations  could  be  continued  only  after  fresh

Environmental  Clearance  was  accorded  in  its  favour  by  the  Ministry  of

Environment and Forests and Union of India.

3. The Environment Impact Assessment  Notification dated 27.01.1994

issued  by  the  Central  Government  in  exercise  of  powers  conferred  by

sub-section(1)   and  Clause  V  of  sub-section(2)   of  Section  3  of  the

Environment (Protection) Act, 1986 read with Clause(d) of sub-rule(2) of

Rule 5 of the Environment (Protection) Rules, 1986 stipulated inter alia that

in case of expansion or modernization of any  activity,  if pollution load

exceeded the existing  one or the new project was listed in Schedule I  to

the said Notification,   such activity  would not  be undertaken unless  the

Environmental Clearance was accorded by the Central Government. Same

thought was carried and finds expressly stipulated in the Notification dated

14.09.2006  issued  by  the  Central  Government  in  supersession  of  the

Notification dated 27.01.1994. The Notification dated 14.09.2006 directed

that the required construction 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 would be undertaken only after  prior Environmental Clearance

from the Central  Government or  as the case may be by the State Level

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Environment  Impact  Assessment  Authority.   Clauses  2  and  4  of  the

Notification deal with requirements of prior Environmental Clearance and

Categorization  of  Projects  and  Activities  respectively.   Under  Clause  7

Environmental  Clearance  process  comprises  of  four  stages  in  sequential

order, namely, (1)- Screening, (2) Scoping, (3) Public Consultation and (4)

Appraisal.    

4. The  Appellant  set  up  a  Steel  Plant  at  Village  Samakhiyali,  for

manufacturing  various  products  after  having  received  No   Objection

Certificate  from Gujarat Pollution Control Board (“GPCB”,  for short) on

25.02.2005,   which  thereafter  granted  consent  vide  Authorization  Order

dated 10.11.2005 for  manufacture of   Pig Iron,  Steel  Billets/Slabs,  Steel

Bars and Rods, etc.

5. The Appellant had set up the Plant and begun manufacturing process

and later by its letter dated 30.11.2007 applied for Environmental Clearance.

On  20.02.2008  the  Government  of  India,  Ministry  of  Environment  and

Forests  granted  Environmental  Clearance,  the  relevant  portions  of  the

Clearance being:-

“2.0 The Ministry of Environment and Forests has examined the application.  It is noted M/s. Electrotherm (India) Ltd. have proposed expansion of Pig Iron Plant (150 to 350 TPD) with Captive  Lignite/Coal  char  based  Power  Plant  (24  MW)  and WHRB  (6MW)  at  Samakhiyali,  Bhachhu,  Kutch,  Gujarat.

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Total project area is 100.6276 ha. and expansion will be carried out  in  20.79  ha.  No  National  Park  of  Wildlife  Sanctuary  is located within 10 km ………………………............................... ……….. Total cost of project is Rs. 90.00 Crores……………...

3.0  Iron  ore  will  be  reduced  in  a  Blast  Furnace.   ESP dust collectors,  venture  scrubbers,  bag  letters  will  be  provided to control  are  emissions  from WHRB,  AFBSC,  Boiler,  Crusher House  etc.   Gas  will  be  cleaned  in  GCP.   Total  water requirement of 650 M/day will  be supplied by Gujarat water Supply and Sewage Board (GWSSB) Zero Discharge will be adopted.  Fine particles of coke, iron ore and ETP sludge will be recycled and reused in the process.  BF Slag will be sold to cement manufacturers of used for road construction.  Fly ash will  be used in the captive brick manufacturing plant.   Char from the sponge iron plant will be 100% utilized in the FBC boiler.  

4.0 Public hearing/Public consultation meeting was held on 12th June, 2007.

5.0 The Ministry of Environment and Forests hereby accords Environmental  Clearance  the  above  project  under  EIA Notification  dated  14th September,  2006  subject  to  strict compliance of the following conditions………………………”

The Environmental Clearance then sets out certain specific conditions

and general conditions.   

6. The Appellant thereafter, applied for expansion of Steel Plant.  The

matter  was  dealt  with  in  the  Ninety  First  Meeting  of  the  Re-constituted

Expert  Appraisal  Committee  (Industry)  held  during  9-11 February, 2009.

The Appellant had informed that Public hearing for the previous project was

held on 12.06.2007 and that the proposed expansion would be within the

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existing  industrial  premises  and no extra  land would  be  required.    The

matter was dealt with by the Committee and the relevant minutes were :- “PAs vide  letter  dated  29th December,  2008 informed

that  Public hearing for the previous project  was held on 12th June, 2007, for which, Environmental Clearance was accorded vide Ministry’s letter  No.J-11011/503/2006/IA-II(I)  dated 20th February, 2008. It is also informed that proposed expansion will be within the existing industrial premises and no extra land will be required.

M/s  Electrotherm  (India)  Ltd.  have  proposed   for  the expansion of Steel plant at Milestone No. 310 of NH No. 8A, Village Samkhiyali,   Taluka Bhachau,   Kutch,  Gujarat.   PAs have mentioned that  Sponge Iron,  DI Pipes,   Steel Rolling Mill, Induction Furnace are existing after getting ‘NOC’ from GPCB.  Environment clearance for Pig Iron Plant and CPP (30 MW)  is  accorded  vide  letter  dated  20th February,  2008. Expansion will be carried out in 20.24 ha within the existing industrial premises of 100.62 ha. No National Park/Wild Life Sanctuary/Reserve Forest is located within 10 km radius of the project  site.   Total  cost  of  the  project  is  Rs.274.00  Crores. Rs.5.89 Crores and Rs.0.40 Crores will be earmarked towards total  capital  cost  and recurring cost/annum for environmental pollution control measures. ………….

Iron  Ore  (65,400  MTPM),  Limestone  (8,856  MTPM), Manganese  Ore  (465  MTPM),  Quartizite  (1,068  MTPM), Dolomite  (2,471  MTPM)  and  Lime  Dolofines  (968  MTPM) will be used as raw material.

Sponge Iron will be produced using DRI method.  Iron oxide  will  be  chemically  reduced  to   ‘hot  metal’  in  Blast furnace.   Sinter  Plant will use iron ore fines, mill scales and flue dust.   Sinter  produced will  be used in BF Billets  from Steel  Melt  Shop (SMS) will  be  put into Billet in Reheating Furnace.  Reheated  Billets will be used to manufacture TMT Bars.   Pig Iron will  be heated in Induction Furnace (IF)   to prepare Duct Iron pipes. Scrap and sponge iron will be changed to IF  and  then poured to Ladle Refining Furnace (LRF) and

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then molten material  will  be  changed to continuous casting machine (CCM) to produce billets, rods and bars.  Waste gases from  DRI  will  be  used  in  WHRB.   No  AFBC  is  proposed during expansion.

ESP will  be  provided  to  WHRB.  Waste  gases  will  be used  in Waste Heat Recovery Boiler (WHRB) before disposing of through stack.  Fugitive emissions will be controlled  by dust suppression measures.  Gas cleaning system will be provided to BF. Bag  filters/wet  cleaning  system will  be  provided  to  BF. Bag  house  will  be  provided to  Pig Iron Plant.  ESP will  be provided to  Sinter  plant.   Multi-cyclone  will  be  provided  to re-heating  furnace.   Bag  filters  will  be  provided  to  product handling  and  transfer  points.   Dust  suppression  system  i.e. water sprinkling will be provided to conveyer, transfer points, loading and unloading areas.

Total  water  requirement  from  Gujarat  Water Infrastructure  Ltd.  (GWIL)  will  be  2,165  m3/day.   PAs submitted the water allotment letter dated 22nd October, 2008 from GWIL.  Air-cooled condenser will be provided to WHRB. The  waste  water  from  power  plant  will  be  treated  in neutralization plant.  Treated waste water will be used for water sprinkling during dust suppression and green belt development. Sewage will be disposed of through septic tank & soak pit.

Fly ash (2,820 MTPM), bed ash (600 MTPM) will  be used in captive brick manufacturing plant and additionally have a tie up with Cement manufacturing units.   Coal char (5,400 MTPM)  will  be  used  in  existing  power  plant.   Slag  (5,124 MTPM) will be sold to cement/brick manufacturing units.  Iron ore fines, mill scale, flue dust etc. will be used in Sinter Plant. BF  slag  will  be  granulated  and  provided  to  cement manufacturers.   Used/spent  oil  will  be  sold  to  authorized recyclers.

Out of total 100.62 ha, green belt is earmarked for 8 ha. in  existing  and 5.47 ha.  in  proposed  expansion.   Thus,  total 13.47 ha. is proposed for the green belt development.  Coke,

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coal  and  waste  heat  from  DRI  will  be  used  as fuel………………………………………………………”  

7. After setting out the details of the proposed expansion of the project

as aforesaid, the decision of the Expert Committee was as under:

“The Expert Committee (Industry) decided that PAs may be  communicated  the  above  ‘TORs’  for  the  preparation  of EIA/EMP.  As soon as the draft EIA/EMP report is prepared as per the ‘General Structure of EIA’ given in Appendix III and IIIA in the EIA Notification, 2006, the same may be submitted by the PAs to the MOEF for prior Environmental Clearance. PAs  informed to  the  Committee  that  Environment  Clearance has  been  accorded  to  M/s  Electrotherm  India  Ltd.  for  the existing plant vide letter dated 20th February, 2008 with public hearing on 12th June,  2007 and requested  for  the exemption. The Committee considered the request and exempted from the public hearing as per Section 7(ii)  of  EIA Notification,  2006 due  to  no  additional  land  requirement,  ground  water  drawl, utilization of  DR and BF gases  in  WHRB & char  in  AFBC boiler,  fly ash and BF slag to cement manufacturers, etc.”

8.  The  matter  was  thereafter  considered  for  grant  of  Environmental

Clearance  which came to be granted by Government of India, Ministry of

Environment  and Forests  by  communication dated  27.01.2010,  relevant

portion of which was:-

“The Ministry of  Environment and Forests has examined the application.  It  is noted that proposal  is for the expansion of Steel  plant  at  Milestone  No.310  of  NH  No.8A, Village-Samkhiyali,  Taluka  Bhachau,  Kutch,  Gujarat  by M/s. Electrotherm India Limited.  Expansion will be carried out in

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21.43 ha within the existing industrial premises of 11.46 ha. No National  Park/Wild  Life  Sanctuary/Reserve  Forest  is  located within 10 km radius of the project site.  Total cost of the project is Rs.274.00 crores.  Sponge Iron, DI Pipes, Steel Rolling Mill, Induction  Furnace  are  existing  after  getting  ‘No  Objection Certificate’  from  Gujarat  Pollution  Control  Board  (GPCB). ‘Consent to Establish’ is also obtained from GPCB vide consent No. PC/CCA/KUTCH-294/28080, dated 13th September, 2006 and  PC/CCA-KUTCH-294(3)13208  dated  30th April,  2008. Environmental Clearance for the existing plant (Pig Iron Plant and Captive Power Plant (30 MW) is accorded vide Ministry’s letter No.J-11011/503/2006-IA-II(I) dated 20th February, 2008. Following are the details of the existing and proposed facilities:

Sr.No. Products              Production Capacity (MTPM) Existing Proposed Total

1 Sponge Iron 6,000 18,000 24,000 2 D.I. Pipes 4,000 12,000 16,000 3 Captive Power

    WHRB        FBC

30 MW 6 MW

24 MW

15 MW 15 MW

45 MW 21 MW 24 MW

4 Pig Iron (Blast Furnace)

4,500 18,600 23,100

5 Sinter Plant - 32,400 32,400 6 Steel  Rolling

Mill 5,833 10,500 16,333

7 MS Billets/Bars

5,833 30,000 35,833

8 Stainless Steel Billets

25,000 -- 25,000

9 Alloy Nickel 416 -- 416 10 Induction

Furnaces 17Sets/ Month

-- 17 sets

11 Electric  Cycle and Vehicle

83 Sets/ Month

-- 83 sets

3.0  Sponge Iron  will  be  produced using  DRI  method.   Iron oxide will be chemically reduce to ‘hot metal’ in blast furnace

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(BF).  Sinter plant will use iron ore fines, mill scales and flue dust.   Sinter  produced will  be used in BF.  Pig Iron will  be heated  in  induction  furnace  (IF)  to  prepare  duct  iron  pipes. Scrap and sponge iron will be charged to IF and then poured to ladle refining furnace (LRF) and then molten material will be changed  to  continuous  casting  machine  (CCM)  to  produce billets, rods and bars.  Billets from steel melt shop (SMS) will be put into reheating furnace to manufacture TMT bars.  Waste gases from DRI will be used in WHRB. No AFBC is proposed during expansion since it already exists.  

4.0 Electrostatic  precipitator  (ESP),  dust  settling  chamber (DSC), after burning chamber (ABC), gas cleaning system with bag house, bag filters, multi-cyclones, dust collectors, stack of adequate height, dust suppression and extraction system will be provided to control air emissions.  Total water requirement from Gujarat Water Infrastructure Ltd. (GWIL) will be 2,165 m³/day and water is allotted vide letter dated 22nd October, 2008.  No ground water  will  be utilized.   Air-cooled  condenser  will  be provided to WHRB.  No waste water will be discharged from sponge iron plant,  pig iron plant,  sinter  plant,  WHRB power plant, TMT bar plant, BI pipe and induction/arc furnace.  The waste water from power plant will be treated and used for dust suppression  and  green  belt  development.   Coal  char  will  be used in existing power plant, coal dust in the boiler, iron ore fines, mill scales, flue dust etc. in sinter plant.  Fly ash will be used in captive brick manufacturing plant and also provided to cement manufacturing units.  

Slag will be sold to cement/brick manufacturing units.  Bed ash will be disposed off in secured landfills.  

5.0 Public  hearing  for  the  existing  plant  was  held  on  12th June, 2007 and is exempted for the proposed exemption as per Section-7(ii) of EIA Notification, 2006.”

9. On or about 10.05.2010 Respondent No.1 herein filed Special Civil

Application  No.5986  of  2010  in  the  High  Court  of  Gujarat,  in  public

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interest,  seeking  revocation  of  Environment  Clearance  granted  to  the

Appellant for expansion of its plant.  It  was submitted inter alia that as a

result  of  expansion the proposed capacity  and activities  of  the Appellant

were to increase substantially and that the Environmental Clearance granted

for expansion of plant was not in conformity with EIA Notification of 2006.

The Appellant which was Respondent No. 3 in the High Court, in its reply

submitted  inter  alia  that  the  petition  was  not  in  public  interest  and

Respondent No.1 was set up by the business rivals of the Appellant and that

the Appellant had complied with all the norms and requirements and was

rightly  granted  Environment  Clearance  for  expansion  of  the  plant.  The

responses filed on behalf of the Ministry of Environment and Forest, Govt.

of  India  and  Gujarat  Pollution  Control  Board  also  submitted  that  the

Environmental Clearance was rightly granted and that the activities of the

Appellant  were periodically and regularly being monitored to ensure that

stipulated Environmental safeguards were complied with.  

10. After hearing rival submissions, the High Court by its judgment and

order dated 11.5.2012 allowed Special Civil Application No.5986 of 2010

principally on the ground that the Environmental Clearance dated 27.1.2010

was granted without there being public consultation or public hearing which

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was a mandatory requirement under 2006 Notification.  The observations of

the High Court in that behalf were as under:-

“18. The facts  to  a  certain extent  have disturbed us for  the simple reason that respondent no.3 set-up its unit of steel plant in  the  year  2005  and  started  operating  the  same  fullfledge. However, till 2008 they had no Environmental Clearance and it is only for the first time vide order dated 20th February 2008 Environmental  Clearance  was  granted  and  that  too  for expansion.  Subsequently, once again in 2009, they applied for Environmental  Clearance  as  they  proposed  to  increase  the production capacity almost three times the existing capacity, for which also Environmental Clearance was granted but without giving any public hearing or public consultation.   

19. Thus,  the  only  question  for  our  consideration  is  as  to whether the Environmental Clearance dated 27.1.2010 can be termed as illegal in the absence of public consultation or public hearing as mandatorily provided by Notifications dated 2006. We agree with learned Counsel Mr. Oza that there is a basic flaw  in  the  Environmental  Clearance  granted  in  favour  of respondent No.3.  It is apparent that when public hearing took place in the year 2007, the same was on the basis of the first application which respondent No.3 had preferred for expansion of  the  steel  plant.   Objections  were  raised  by  the  persons concerned.  However, when Environmental Clearance came to be granted vide order dated 27th January 2010 pursuant to the second application dated 8th June 2009 preferred by respondent no.3 for enhancing the production capacity, the requirement of public hearing/public consultation was waived by the authority on the  assumption  that  in  the  year  2007 public  hearing was already undertaken.  It is undisputed that in the year 2007 when the public hearing was given,  the objections and suggestions were  taken  into  consideration  by  the  authority  and Environmental Clearance was accorded in the year 2008 but, thereafter, when the second application was preferred dated 8th June 2009 for enhancing the production capacity by more than double,  people  were  not  made  aware  of  this  proposal  of

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respondent  No.3  and  the  authority  proceeded  to  accord Environmental Clearance waiving public hearing.”  

The High Court also placed reliance on the pronouncement of  this

Court  in  the  case  of  Lafarge  Umiam  Mining  Private  Limited

- T.N.   Godavarman Thirumulpad  Vs. Union of India and Others1.  The

High Court thus set aside Environmental Clearance dated 27.01.2010 and

directed  the  appellant  to  stop  operations  of  the  entire  plant  and  further

directed that the operations could be restarted only after fresh Environmental

Clearance was accorded in its favour by the Ministry of Environmental and

Forests and Union of India.   The decision of the High Court is presently

under challenge.

11. In  this  appeal  by  Special  Leave,  this  Court  issued  notice  on

15.05.2012 and by further order dated 18.05.2012 stayed the operation of the

judgment and order of the High Court. It also directed the Central Pollution

Control  Board to file status report  in respect  of  plant  and compliance of

statutory requirements by the appellant. On 18.7.2012 an affidavit was filed

on behalf of CPCB stating that during its visit half of the plant was not in

operation and as such actual compliance of the statutory requirements could

not be ascertained.  It further stated that the industry of the Appellant was

1 2011 (7) SCC 338

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non-compliant with pollution standards in one or the other area made certain

recommendations.

12. The matter was thereafter taken up on 22.4.2014 when the following

order was passed by this Court:-

“The matter has been almost fully heard.  Having regard to  the  submissions  of  the  learned  senior  counsel  and  the Notifications of 1994 and 2006, it has become necessary to get the joint  inspection  done of  the  petitioner’s project  from the Gujarat Pollution Control Board and Central Pollution Control Board (CPCB) and report submitted to this Court whether the petitioners  has  complied  with  the  recommendations  of  the Central Pollution Control Board which are specified in para 7 of the affidavit of Mr. R.K. Purohit, Senior Executive Director of the petitioner in response to the affidavit of Central Pollution Control Board dated 18.7.2012.

We,  accordingly,  direct  the  Central  Pollution  Control Board  and  Gujarat  Pollution  Control  Board  to  make  a  joint inspection of the petitioner’s project in the 3rd week of June, 2014 and report about the compliance of the recommendations as set-out in the above affidavit.  The report shall be submitted on or before 5.7.2014.  We make it clear that if from the report it transpires that the petitioner has not yet complied fully with the recommendations specified in the affidavit noted above, the special leave petition shall have to be dismissed.  On the other hand, if the full compliance of the above recommendations is found  to  have  been  made,  the  impugned  order  of  the  High Court will be set-aside…………………………”

13.   In the affidavit filed on 07.07.2014 on behalf of CPCB it was stated

inter alia that pursuant to the order dated 22.04.2014 passed by this Court, a

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joint  inspection  was  carried  out  as  directed  and  that  the  industry  of  the

Appellant had complied with most of the recommendations,  though there

were still certain shortcomings.

14. The matter was thereafter taken up for hearing.  Appearing in support

of the appeal Dr. A.M. Singhvi, learned Senior Advocate submitted that most

of the recommendations made in the affidavit dated 18.07.2012 having been

complied with,  the matter  now stood in a  narrow compass.   Mr. Huzefa

Ahmadi, learned Senior Advocate appearing for Respondent No.1 however

submitted that the infirmity on account of absence of public hearing/public

consultation which is a mandatory requirement under the EIA Notification of

2006, rendered the Environmental Clearance dated 27.01.2010 invalid and

illegal.   

15. The  facts  on  record  are  clear  that  while  granting  Environmental

Clearance on 20.02.2008, public consultation/public hearing was undertaken

on 12.06.2007.  As on that date the status of the project was that the capacity

of Pig Iron Plant was to be 350 TPD, Power Plant to be 24 MW, the total

cost of the project was 90.00 crores and the total Water requirement was 650

M /Day.  ᶟ  The High Court  was  absolutely  right  that  after  expansion the

capacity of the plant was to increase three-fold.  The tabular chart given in

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Environmental  Clearance  dated  27.01.2010  itself  shows  the  tremendous

increase in the capacity.  Consequently, the pollution load would naturally be

of  greater  order  than  the  one  which  was  contemplated  when  the  earlier

public consultation/public hearing was undertaken on 12.08.2007.  Further,

the water requirement had also risen from 650 M /Day to 2165 M /Day.ᶟ ᶟ   The

increase  in  pollution  load  and  water  requirement  were  certainly  matters

where public in general and those living in the vicinity in particular had and

continue to have a stake.

  16. Public consultation/public hearing is one of the important stages while

considering the matter for grant of Environmental Clearance.  The minutes

of the meetings held on 9-11 February, 2009 show that the request of the

Appellant  for  exemption  from  the  requirement  of  public  hearing  was

accepted by the Committee.  The observations of the Committee suggest that

there  would  be  no  additional  land  requirement,  ground  water  drawl  and

certain  other  features.   However  the  water  requirement,  which  is  a

community resource, was definitely going to be of greater order in addition

to the fact that the expansion of the project would have entailed additional

pollution load.

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17. It  must  be  stated  here  that  after  EIA Notification  of  2006  a  draft

Notification  was  issued  on  09.01.2009  wherein  an  amendment  was

suggested  in paragraph 7(ii)  of  EIA Notification dated 14.09.2006 to the

effect that in cases of expansion of projects involving enhancement by more

than  50%  holding  of  public  consultation/public  hearing  was  essential;

implying thereby that in cases where expansion was less than 50% public

consultation/public  hearing  could  be  exempted.   Without  going  into  the

question whether public consultation/public hearing could be so exempted, it

is relevant to note that this idea in the draft Notification was not accepted,

after a Committee constituted to advise in the matter had given its report on

30.10.2009  to  the  contrary.   As  a  result,  the  final  Notification  dated

01.12.2009 did not carry or contain the amendment that was suggested by

way of draft Notification.  Consequently, no exemption on that count could

be  given  when  the  Environmental  Clearance  came  to  be  issued  on

27.01.2010.   

18. In the case of Lafarge (supra) public consultation/public hearing was

considered and found to be mandatory requirement of  the Environmental

Clearance process by this Court.  In its conclusions culled out in paragraph

122 (xiv) as regards public consultation/public hearing, it was observed by

this Court:-

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“(xiv)  The public consultation or public hearing as it is commonly  known,  is  a  mandatory  requirement  of  the Environment  Clearance  process  and  provides  an  effective forum for any person aggrieved by any aspect of any project to register and seek redressal of his/her grievances.   

19. At the same time the observations by this Court while summing up the

discussion in paragraph 119 are quite eloquent:-   

“……It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with  principles  of  sustainable  development  and intergenerational  equity, but  balancing  of  these  equities  may entail policy choices.  In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well-recognised principles of judicial review.  Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision?  Is the decision  strictly  in  accordance  with  the  legislative  policy underlying  the  law  (if  any)  that  governs  the  field?   Is  the decision  consistent  with  the  principles  of  sustainable development in the sense that has the decision-maker taken into account  the  said  principle  and,  on  the  basis  of  relevant considerations, arrived at a balanced decision?  Thus, the Court should review the decision-making process to ensure that the decision  of  MoEF  is  fair  and  fully  informed,  based  on  the correct principles, and free from any bias or restraint.”

In terms of the principles as laid down by this Court in the case of

Lafarge (supra), we find that the decision making process in doing away

with or in granting exemption from public consultation/public hearing, was

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not based on correct  principles and as such the decision was invalid and

improper.   

20. At the same time, we cannot lose sight of the fact that in pursuance of

Environmental Clearance dated 27.01.2010, the expansion of the project has

been  undertaken  and  as  reported  by  CPCB  in  its  affidavit  filed  on

07.07.2014,  most  of  the  recommendations  made  by  CPCB are  complied

with.  In our considered view, the interest of justice would be sub-served if

that part of the decision exempting public consultation/public hearing is set

aside  and  the  matter  is  relegated  back  to  the  concerned  Authorities  to

effectuate public consultation/public hearing.  However, since the expansion

has been undertaken and the industry has been functioning, we do not deem

it appropriate to order closure of the entire plant as directed by the High

Court.   If  the  public  consultation/public  hearing  results  in  a  negative

mandate against the expansion of the project, the Authorities would do well

to  direct  and ensure  scaling  down of  the  activities  to  the  level  that  was

permitted  by  Environmental  Clearance  dated  20.02.2008.   If  public

consultation/public hearing reflects in favour of the expansion of the project,

Environmental Clearance dated 27.01.2010 would hold good and be fully

operative.  In other words, at this length of time when the expansion has

already been undertaken, in the peculiar facts of this case and in order to

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meet  ends  of  justice,  we  deem  it  appropriate  to  change  the  nature  of

requirement  of  public  consultation/public  hearing  from  pre-decisional  to

post-decisional.   The public consultation/public hearing shall be organized

by the concerned authorities in three months from today.

21. This  appeal  therefore  stands  disposed  of  with  the  aforesaid

modifications.  No order as to costs.   

     ….. …………………CJI.  (T. S. Thakur)

….……………………J.  (R. Banumathi)                

        …...……………………J (Uday Umesh Lalit)

New Delhi, August 02, 2016