SC to examine its order on govt’s mining clearance

The Supreme Court will review its decision that invalidated post-facto environmental clearances for mining and construction projects lacking prior approval.

The Supreme Court on Tuesday set out to examine the correctness of its decision setting aside Centre’s notification giving clearance to mining and construction projects which did not have environmental clearance at the time of commencing work.

SC to examine its order on govt’s mining clearance

A three-judge bench headed by Chief Justice of India (CJI) Bhushan R Gavai issued notice on a review petition filed by the Confederation of Real Estate Developers of India (CREDAI). The petition had assailed the May 16 order passed by a two-judge bench that set aside the notifications of 2017 and 2021 issued by the Ministry of Environment Forests and Climate Change (MoEFCC) granting post-facto clearance to projects which failed to obtain prior environment clearance (EC) as required under the Environment Impact Assessment (EIA) notification of 2006.

The bench sought the response of non-profit organisation Vanashakti which had filed the original petition on which the May 16 order was passed.

The bench, also comprising justices Ujjal Bhuyan and K Vinod Chandran said, “We will first hear the review petition. In the event you are able to persuade us, we will then take up the applications.”

CREDAI, an apex body of real estate developers having 13,000 companies under its fold had filed the review petition in July and on August 13, the top court had agreed to list the matter in open court.

Senior advocate Mukul Rohatgi who appeared for CREDAI pointed out that the judgment by the top court had created an artificial distinction by holding that projects having valid ECs will be able to continue while in case of those who had applied and their EC was in the pipeline will face demolition.

The review petition said, “The judgment has caused significant hardship to the real estate industry and interdependent sectors since there are hundreds of applications in pending projects who have applied under the 2021 office memorandum (OM) which in light of the judgment face imminent threat of demolition, despite many of such projects being substantially constructed with due building permissions.”

Senior advocates Kapil Sibal and ANS Nadkarni representing individual developers told the court that some of the projects include construction of public utilities such as airports which is stuck after this judgment.

The bench clarified it will not examine individual instances but will purely hear arguments on law. The decision of May 16 was rendered by justice AS Oka (since retired) and justice Bhuyan, who is part of the present bench.

Vanashakti represented by advocate Vanshdeep Dalmia told the court that the review petition has not been served upon them. Without the same being done, he said, it was not possible to proceed with the hearing. Another non-profit organisation One Earth One Life, represented by senior advocate Sanjay Parikh informed the court that though, they had intervened in the proceedings culminating in the May 16 verdict, they would also like to make submissions and requested a copy of the review petition to be served to them.

The bench directed the review petition to be supplied to these parties and posted the matter for further hearing on October 7.

Dalmia told the court that for entertaining a review petition, the petitioner must make out an “error apparent” in the judgment for which review is sought. He told the court that the argument of hardship was considered before passing the judgment under challenge and the court held that the two OMs of March 14, 2017 and July 7, 2021 were “illegal” as the very concept of grant of “ex-post facto EC” cannot be countenanced.

Rohatgi told the court that the judgment completely overlooked several aspects making it “harsh, punitive, and contrary to the principles of sustainable development”. He said that many developers had applied under the 2021 OM under the bonafide belief of getting post-facto clearance. According to him, the 2021 OM distinguishes between projects that had no prior EC, projects that had obtained a prior EC but expanded or changed scope of their projects, and projects which initially did not require prior EC but now require the same. This distinction was not addressed by the judgment which treated all cases with a single brush stroke, CREDAI argued.

As per the MoEFCC’s own admission in the May 16 verdict, there are 454 cases pending consideration at the state level and 14 cases pending consideration at the Central level under the 2021 OM. “This ground reality has been ignored while passing the Impugned Judgment,” CREDAI argued.

The May 16 order had said “There are no equities in favour of those who committed gross illegalities without obtaining prior ECs. The persons who acted without ECs were not illiterate persons. They are companies, real estate developers, public sector undertakings, mining industries etc. They were the persons who knowingly committed the illegalities. We therefore make it clear that hereafter the Central Government shall not come out with any version of the 2017 notification which provides for grant of ex-post facto EC….We restrain the Central Government from issuing circulars, orders, notifications, OMs providing for grant of ex-post facto EC in any form or manner. We clarify that ECs already granted under the 2017 notification and the 2021 OM shall remain unaffected.”

The 2017 notification gave a “one-time opportunity” to violating projects to apply for ex post facto environmental clearance within six months.

Vanashakti had opposed this OM on the ground that such EIA 2006 contemplates only prior EC and post-facto clearance was an attempt to encourage and shield violating industries who commence work without any assessment being done of the environmental impact.

Accepting this point, the judgment had said, “The very concept of grant of ex-post facto EC is illegal, it is not possible to understand why the Central Government made efforts to protect those who committed illegality by not obtaining prior EC in terms of the EIA notification.”