Gujarat industries told to stop operations, pay Rs 10 lakh fine each: "Illegal" environmental clearance

In an important judgment, India’s environmental watchdog, National Green Tribunal (NGT), has struck down Environment Clearance (EC) procedure adopted during 1998-2003 by the Ministry of Environment, Forest (MoEF), Government of India, for granting what was called “ex-post-facto environmental clearance” several defaulting industrial units of Gujarat.
In a judgment delivered 13 years after a Public Interest Litigation (PIL) was filed in 2003 by well-known Gujarat-based environmentalist Rohit Prajapati of Paryavaran Suraksha Samiti, along with Ziya Pathan of the People’s Union for Civil Liberties, the NGT termed the ex-post-facto environmental clearance “illegal”.
Ex-post-facto environmental clearances means EC to industries granted after production work started in these industries. As on March 13, 2003, the MoEF had revealed, there were 213 such defaulting industries across India, though, said Prajapati talking with newspersons, there is so far no information on defaulting industries that operated as on November 5, 1998, the date MoEF claimed that it learnt of the defaulting industries starting their production without prior EC.
It is not clear if the NGT order would apply to all the 213 units the MoEF had identified in March 2013, or only to several of the Gujarat units which had opposed the PIL filed by Prapapati and Pathan.
The NGT bench of Justice VR Kingaonkar and Dr Ajay A Deshpande, which sits in its Western Zone Branch in Pune, stated in its order, delivered on January 8, that the MoEf circular dated May 14, 2002, “does not show by which provisions, the power is provided in the Environment (Protection) Act, 1986, to allow ‘ex-post facto’ EC.”
It insisted, the circular is “void, ab-initio and ought to be struck down”, saying “We have no hesitation in holding that ‘ex-post facto’ process of obtaining ECs was just a farce, stage managed, wrong and impermissible under the law and suffered from illegality, which is incurable in any manner.”
Calling the circular “illegal, void and inoperative”, the NGT asks the MoEF to “immediately clarify legal position to the concern authorities within one month”, telling it not to take “any further action on basis of aforementioned Circular.”
The NGT order asks the units which had opposed Prapapati’s PIL to close down industrial activities, and take instead “consent to operate” immediately, within four weeks, inasmuch “as they are being operated without any legal permission/consent” and on the basis of the “concept of ‘ex-post facto’ sanction or ‘ex-post facto’ hearing.”
The NTG order wants each unit to pay Rs 10 lakh each for “causing environmental degradation”, which, it says, should be “utilized for restoration of environment and if any reminder available for plantation purpose in and around the Ankleshwar industrial area.”
In case of failure to deposit the amount the district collector, Bharuch, says the order, should take steps to “confiscate the industries and goods, stock and barrel and may sale the same for recovery of amount, as if it is dues under the Gujarat Land Revenue Code.”
The industrial units that would be affected because of ex-post-facto environmental clearance, Prajapati said, are United Phosphorous Ltd, Unit No. II, Plot No. 3405, 3406, GIDC, Ankleshwar, Dist. Bharuch; Unique Chemicals, Plot No. 5, Phase IV, GIDC, Panoli, Dist: Bharuch; Darshak Pvt. Ltd. Village: Panelav, Tal: Halol, Dist: Panchmahal (now known As Alembic Chemical Ltd.); and Nirayu Pvt. Ltd. Village: Panelav, Tal: Halol, Dist: Panchmahal (now known as Alembic Chemical Ltd.).

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