Read Time: 10 minutes

Synopsis

The Supreme Court has confirmed an order by the National Green Tribunal (NGT) which had allowed prosecution of a real estate developer for violation of statutes as a condition for ex post facto consent to establish for its projects.

A bench of Justices Abhay S Oka and Sanjay Karol, however, set aside the NGT's order so far it declared the constructions carried out between April 2012 to August 2017 as illegal.

The court was dealing with an appeal filed by M/s Sweta Estate Pvt Ltd Gurgaon against the Tribunal's order of February 24, 2020.

The appellant undertook a project of developing a housing colony at Gurgaon Sohna Road, Sector 48, Gurgaon, Haryana. The housing project comprised several buildings containing apartments, service apartments, etc. Initially, in August 2006, the appellant applied to the Haryana State Pollution Control Board for a grant of Consent to Establish (CTE) under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 to the Board. 

After the clearance in 2007, the appellant applied for renewal for consent to establish in 2013 and 2015, which were rejected.

In March 2017, the appellant applied for EC for the expansion of the housing project to the Government of India. On June 21, 2017, the Chairman of the Board passed an order granting approval for prosecuting the appellant and its responsible Directors for the offences punishable under Sections 43 and 44 of the Water Act and Sections 37 and 38 of the Air Act. On February 28, 2012, the Board issued an office order providing industry that comes into operation without obtaining CTE can be granted CTE ex-post facto, provided the unit is compliant in all respects.

On October 18, 2017, the Board granted ex-post facto CTE to the appellant, which contained a condition that prosecution would be initiated against the appellant.

The Appellate Authority, by judgment and order on March 15, 2018, quashed the order of approval to prosecute on the ground that, subsequently, ex-post facto CTE has been granted to the appellant. 

Upon the Board's appeal, the NGT set aside the appellate authority's order. The NGT also held the EC granted in 2017 would not condone illegal constructions. 

After hearing the parties, the bench said that the only issue in the appeal preferred before the NGT was regarding the legality and validity of the order of the appellate authority and the approval granted on June 21, 2017 to prosecute the appellant.

"While dealing with the appeal, NGT ought not to have gone into the issue of whether the EC granted earlier expired on 9th April 2012. Considering the limited scope of appeal, NGT ought not to have gone into the question of whether the construction carried out by the appellant between 9 th April 2012 to 29th August 2017 was illegal," the bench said.

With regard to the Chairman granting approval to prosecute the appellant and its responsible Directors/persons for offences punishable under the Air and Water Acts, the bench noted that the appellant neither challenged the resolution of the Board of February 8, 2012 nor the said condition by filing any proceedings. 

"The appellant did not apply to modify condition by taking recourse to clause (a) of sub-section (2) of Section 27 of the Water Act. Moreover, an appeal could have been preferred by the appellant for challenging the condition by taking recourse to Section 28 of the Water Act and Section 31 of the Air Act," the bench said.

The court further pointed out that the appellant did not challenge the Board’s decision of February 2012, authorising the Board to grant ex-post facto CTE, which clearly provided that simultaneously with the grant of ex-post facto CTE, action would be taken against the unit which violated the provisions of the Air/Water Acts by not obtaining prior CTE, as a past violation. 

It is pertinent to note that the appellant not only failed to make any grievance about the condition in the ex-post facto CTE but acted upon the ex-post facto it, the court said. 

After the expiry of two months from the grant of the ex-post facto CTE, the appellant challenged the order granting the approval for prosecuting the appellant. The said challenge at the instance of the appellant ought not to have been entertained by the appellate authority as the appellant was bound by the condition in the ex-post facto CTE granted in October 2017, the top court observed.

"After having acted upon the ex-post facto CTE of October 18, 2017, the appellant cannot be allowed to approbate and reprobate. Therefore, interference by the appellate authority by its judgment of March 15, 2018 was illegal and uncalled for. To that extent, the impugned judgment of the NGT cannot be interfered with," the bench said.

Case Title: M/s Sweta Estate Pvt Ltd Gurgaon Vs Haryana State Pollution Control Board & Anr