In Civil Appeal No. 2212 of 2020 -SC- Supreme Court rules establishments cannot ‘Approbate and Reprobate’ after acting upon ex-post facto consent to establish
Justice Abhay S. Oka & Justice Sanjay Karol [10-11-2023]

Read Order: M/s Sweta Estate Pvt. Ltd. Gurgaon v. Haryana State Pollution Control Board & Anr

Chahat Varma

New Delhi, November 14, 2023: The Supreme Court has ruled that establishments cannot ‘approbate and reprobate’ after acting upon an ex-post facto Consent to Establish (CTE).

Briefly stated, M/s Sweta Estate Pvt. Ltd., the appellant, had initiated a housing colony project in Gurgaon, seeking necessary clearances and permits from the relevant authorities. Although the Ministry of Environment, Forest and Climate Change and the HSPCB initially granted environmental clearance (EC) and Consent to Establish (CTE) for the project, the appellant encountered obstacles when their CTE renewal applications were rejected in 2013 and 2015. This led to the issuance of a show cause notice of closure by the Board, invoking relevant provisions of the Air and Water Acts.

In a subsequent development, the appellant applied for an EC for the expansion of the housing project, following which, the Chairman of the Board ordered the prosecution of the appellant for offenses under the Water Act and the Air Act, citing non-compliance and operation without obtaining CTE. Despite the grant of EC and ex-post facto CTE at later dates with conditions tied to the prosecution, legal proceedings ensued as the appellant appealed against the prosecution approval. The Appellate Authority set aside the Chairman's approval, referencing the subsequent grant of ex-post facto CTE. However, the Board challenged the Appellate Authority's decision, leading to an appeal to the National Green Tribunal (NGT), which ruled in favour of the Board. The NGT noted that the EC granted in August 2017 did not condone the illegal construction that took place from April 2012 to August 2017, as the earlier environment clearance had expired in April 2012.

The division, comprising Justice Abhay S. Oka and Justice Sanjay Karol, focused on the principle that establishments cannot ‘approbate and reprobate’ after acting upon an ex-post facto CTE, emphasizing the duty of establishments to comply with all applicable laws and regulations, even if they had operated without the necessary permits.

The bench noted that the appellant neither contested the resolution of the Board dated 8th February 2012 nor sought modification of condition no. 4 through the relevant clauses of the Water Act. Additionally, there was no challenge to the Board's decision authorizing the grant of an ex-post facto CTE, which included provisions for action against past violations. The appellant also refrained from raising any grievances about condition no. 4 in the ex-post facto CTE issued on 18th October 2017 but instead acted upon it.

Thus, the bench ruled that having acted upon the ex-post facto CTE, the appellant cannot both accept and reject it. Consequently, the bench deemed the interference by the Appellate Authority in the judgment dated 15th March 2018 as illegal and unwarranted. Therefore, the bench concluded that there should be no interference with the impugned judgment of the NGT to that extent.

However, the bench further stated that the NGT overstepped its jurisdiction by delving into matters beyond the limited scope of the appeal. Specifically, the NGT's considerations regarding the expiration of the earlier granted EC on 9th April 2012 and the legality of construction carried out by the appellant between 9th April 2012 to 29th August 2017 were deemed inappropriate. As a result, the bench determined that the portion of the impugned judgment related to these matters should be set aside.

Ultimately, the findings in the impugned judgment were set aside on the ground that the issues decided were beyond the scope of the appeal before the NGT, and the judgment and order interfering with the Appellate Authority's decision were confirmed.