NGT Struck down the ‘Environment Clearance’ adopted during 1998-2003 by MoEF&CC

13 January 2016

• National Green Tribunal(NGT), Western Zone Bench, Pune struck down the ‘Environment Clearance’ procedure adopted during 1998-2003 by the Ministry of Environment, Forest & Climate Change, Government of India for granting the “Ex-Post-Facto Environmental Clearances” to the 23+ defaulting industries of Gujarat and others across the country.

• NGT also declared “Ex-Post-Facto Environmental Clearances(ECs)” as illegal in Public Interest Litigation filed in 2003 by Rohit Prajapati of Paryavaran Suraksha Samiti & Ziya Pathan of PUCL. 

• NGT order will lead to closing down of many known industries of Gujarat and across country that started production without prior environment clearance.

• “Ex-Post-Facto Environmental Clearances” means Environment Clearance to the Industries granted after production work started in these industries.

As per circular dated 13 March 2003 of then MoEF there were 213 such defaulting industries. We still have to find out the names and number of such defaulting industries that operated as on 5 November 1998 while the MoEF of the day claimed that they learnt about the defaulting industries starting their production without prior ‘Environment Clearance’.

Originally, the PIL Special Civil Application No.17417 of 2003 was before the Hon’ble High Court of Gujarat. The Hon’ble Division Bench of Gujarat High Court transferred the Special Civil Application No. 17417 of 2003 to the National Green Tribunal, Western Zone Bench, Pune by order dated 21 April 2015. The NGT registered this case as Application No. 66 (THC) of 2015 (WZ) under Section 14(1) and 18(1) of the National Green Tribunal Act, 2010.

The (1) United Phosphorous Ltd, Unit No. II, Plot No. 3405, 3406, GIDC, Ankleshwar, Dist. Bharuch, (2) Unique Chemicals, Plot No. 5, Phase IV, GIDC, Panoli, Dist: Bharuch, (3) Darshak Pvt. Ltd. Village : Panelav, Tal: Halol, Dist: Panchmahal (Now known As Alembic Chemical Ltd.), (4) Nirayu Pvt. Ltd. Village : Panelav, Tal: Halol, Dist: Panchmahal, (Now known as Alembic Chemical Ltd.) and such 23 companies of Gujarat who have actually started their project and production after 1994, without the requirement of submitting E.I.A., facing public hearing and thereafter, going for the environment clearance. After having worked with their project without necessary clearance, they came up with E.I.A. and public hearing in 2002. During the environment public hearing on the E.I.A. of the said companies, the question was raised as to how the companies could start their operations without necessary clearance and what is the purpose of post-facto hearing. Its legality and validity had been challenged.

On the basis of above facts and legal background, the following issues were raised before the National Green Tribunal.

A. Whether the public hearing on E.I.A. of the proposed new project for clearance from MoEF could be conducted after starting the industry without necessary clearance? 

B. Whether such an industry, which admittedly operates without any clearance, could be permitted to operate as per the environmental laws and specifically Environment Protection Act and rules 1986?

C. What action should be taken against such erring industries by the Central & State Governments and the GPCB as per law? 

We will be writing letter to MoEF & CC that now the “Circular” which talks about the “Ex-Post-Facto Environmental Clearances” is struck down and declared by the NGT as ab-initio-void, MoEF & CC should cancel the “Environment Clearance” of all the project and companies across India which were granted Environment Clarence” under this circular and MoEF & CC should close down all such projects and companies. MoEF & CC should also assess the environmental damage done by all such projects and companies and recover the total cost for remedial measures.

Rohit Prajapati Krishnakant Swati Desai Trupti Shah