exemption from public consultation/public hearing – not good = If the public consultation/public hearing results in a negative mandate against the expansion of the project, the Authorities would do well to direct and ensure scaling down of the activities to the level that was permitted by Environmental Clearance dated 20.02.2008. If public consultation/public hearing reflects in favour of the expansion of the project, Environmental Clearance dated 27.01.2010 would hold good and be fully operative. =we cannot lose sight of the fact that in pursuance of Environmental Clearance dated 27.01.2010, the expansion of the project has been undertaken and as reported by CPCB in its affidavit filed on 07.07.2014, most of the recommendations made by CPCB are complied with. In our considered view, the interest of justice would be sub-served if that part of the decision exempting public consultation/public hearing is set aside and the matter is relegated back to the concerned Authorities to effectuate public consultation/public hearing. However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court. If the public consultation/public hearing results in a negative mandate against the expansion of the project, the Authorities would do well to direct and ensure scaling down of the activities to the level that was permitted by Environmental Clearance dated 20.02.2008. If public consultation/public hearing reflects in favour of the expansion of the project, Environmental Clearance dated 27.01.2010 would hold good and be fully operative. In other words, at this length of time when the expansion has already been undertaken, in the peculiar facts of this case and in order to meet ends of justice, we deem it appropriate to change the nature of requirement of public consultation/public hearing from pre- decisional to post-decisional. The public consultation/public hearing shall be organized by the concerned authorities in three months from today.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7222 of 2016
(Arising out of SLP (Civil) No.16860 of 2012)

M/s Electrotherm (India) Ltd. ….Appellant

Versus

Patel Vipulkumar Ramjibhai & Ors. …. Respondents

J U D G M E N T

Uday Umesh Lalit, J.

Leave granted.

This appeal challenges the judgment and order dated 11.05.2012 passed by
the High Court of Gujarat allowing Special Civil Application No.5986/2010
setting aside the Environmental Clearance dated 27.01.2010 and directing
that the operations of the entire plant of the Appellant be stopped and
that the operations could be continued only after fresh Environmental
Clearance was accorded in its favour by the Ministry of Environment and
Forests and Union of India.

The Environment Impact Assessment Notification dated 27.01.1994 issued by
the Central Government in exercise of powers conferred by sub-section(1)
and Clause V of sub-section(2) of Section 3 of the Environment
(Protection) Act, 1986 read with Clause(d) of sub-rule(2) of Rule 5 of the
Environment (Protection) Rules, 1986 stipulated inter alia that in case of
expansion or modernization of any activity, if pollution load exceeded
the existing one or the new project was listed in Schedule I to the said
Notification, such activity would not be undertaken unless the
Environmental Clearance was accorded by the Central Government. Same
thought was carried and finds expressly stipulated in the Notification
dated 14.09.2006 issued by the Central Government in supersession of the
Notification dated 27.01.1994. The Notification dated 14.09.2006 directed
that the required construction of new projects or activities or the
expansion or modernization of existing projects or activities listed in
the Schedule to the Notification entailing capacity addition with change
in process and or technology would be undertaken only after prior
Environmental Clearance from the Central Government or as the case may be
by the State Level Environment Impact Assessment Authority. Clauses 2 and
4 of the Notification deal with requirements of prior Environmental
Clearance and Categorization of Projects and Activities respectively.
Under Clause 7 Environmental Clearance process comprises of four stages in
sequential order, namely, (1)- Screening, (2) Scoping, (3) Public
Consultation and (4) Appraisal.

4. The Appellant set up a Steel Plant at Village Samakhiyali, for
manufacturing various products after having received No Objection
Certificate from Gujarat Pollution Control Board (“GPCB”, for short) on
25.02.2005, which thereafter granted consent vide Authorization Order
dated 10.11.2005 for manufacture of Pig Iron, Steel Billets/Slabs, Steel
Bars and Rods, etc.

5. The Appellant had set up the Plant and begun manufacturing process
and later by its letter dated 30.11.2007 applied for Environmental
Clearance. On 20.02.2008 the Government of India, Ministry of Environment
and Forests granted Environmental Clearance, the relevant portions of the
Clearance being:-

“2.0 The Ministry of Environment and Forests has examined the application.
It is noted M/s. Electrotherm (India) Ltd. have proposed expansion of Pig
Iron Plant (150 to 350 TPD) with Captive Lignite/Coal char based Power
Plant (24 MW) and WHRB (6MW) at Samakhiyali, Bhachhu, Kutch, Gujarat.
Total project area is 100.6276 ha. and expansion will be carried out in
20.79 ha. No National Park of Wildlife Sanctuary is located within 10 km
………………………………………………….
……….. Total cost of project is Rs. 90.00 Crores………………

3.0 Iron ore will be reduced in a Blast Furnace. ESP dust collectors,
venture scrubbers, bag letters will be provided to control are emissions
from WHRB, AFBSC, Boiler, Crusher House etc. Gas will be cleaned in GCP.
Total water requirement of 650 M/day will be supplied by Gujarat water
Supply and Sewage Board (GWSSB) Zero Discharge will be adopted. Fine
particles of coke, iron ore and ETP sludge will be recycled and reused in
the process. BF Slag will be sold to cement manufacturers of used for road
construction. Fly ash will be used in the captive brick manufacturing
plant. Char from the sponge iron plant will be 100% utilized in the FBC
boiler.

4.0 Public hearing/Public consultation meeting was held on 12th June,
2007.

5.0 The Ministry of Environment and Forests hereby accords Environmental
Clearance the above project under EIA Notification dated 14th September,
2006 subject to strict compliance of the following conditions………………………”

The Environmental Clearance then sets out certain specific conditions and
general conditions.

6. The Appellant thereafter, applied for expansion of Steel Plant. The
matter was dealt with in the Ninety First Meeting of the Re-constituted
Expert Appraisal Committee (Industry) held during 9-11 February,
2009.

The Appellant had informed that Public hearing for the previous project was
held on 12.06.2007 and that the proposed expansion would be within the
existing industrial premises and no extra land would be required. The
matter was dealt with by the Committee and the relevant minutes were :-

“PAs vide letter dated 29th December, 2008 informed that Public hearing
for the previous project was held on 12th June, 2007, for which,
Environmental Clearance was accorded vide Ministry’s letter No.J-
11011/503/2006/IA-II(I) dated 20th February, 2008. It is also informed that
proposed expansion will be within the existing industrial premises and no
extra land will be required.

M/s Electrotherm (India) Ltd. have proposed for the expansion of Steel
plant at Milestone No. 310 of NH No. 8A, Village Samkhiyali, Taluka
Bhachau, Kutch, Gujarat. PAs have mentioned that Sponge Iron, DI Pipes,
Steel Rolling Mill, Induction Furnace are existing after getting ‘NOC’
from GPCB. Environment clearance for Pig Iron Plant and CPP (30 MW) is
accorded vide letter dated 20th February, 2008. Expansion will be carried
out in 20.24 ha within the existing industrial premises of 100.62 ha. No
National Park/Wild Life Sanctuary/Reserve Forest is located within 10 km
radius of the project site. Total cost of the project is Rs.274.00 Crores.
Rs.5.89 Crores and Rs.0.40 Crores will be earmarked towards total capital
cost and recurring cost/annum for environmental pollution control measures.
………….

Iron Ore (65,400 MTPM), Limestone (8,856 MTPM), Manganese Ore (465 MTPM),
Quartizite (1,068 MTPM), Dolomite (2,471 MTPM) and Lime Dolofines (968
MTPM) will be used as raw material.

Sponge Iron will be produced using DRI method. Iron oxide will be
chemically reduced to ‘hot metal’ in Blast furnace. Sinter Plant will
use iron ore fines, mill scales and flue dust. Sinter produced will be
used in BF Billets from Steel Melt Shop (SMS) will be put into Billet in
Reheating Furnace. Reheated Billets will be used to manufacture TMT Bars.
Pig Iron will be heated in Induction Furnace (IF) to prepare Duct Iron
pipes. Scrap and sponge iron will be changed to IF and then poured to
Ladle Refining Furnace (LRF) and then molten material will be changed to
continuous casting machine (CCM) to produce billets, rods and bars. Waste
gases from DRI will be used in WHRB. No AFBC is proposed during expansion.

ESP will be provided to WHRB. Waste gases will be used in Waste Heat
Recovery Boiler (WHRB) before disposing of through stack. Fugitive
emissions will be controlled by dust suppression measures. Gas cleaning
system will be provided to BF. Bag filters/wet cleaning system will be
provided to BF. Bag house will be provided to Pig Iron Plant. ESP will be
provided to Sinter plant. Multi-cyclone will be provided to re-heating
furnace. Bag filters will be provided to product handling and transfer
points. Dust suppression system i.e. water sprinkling will be provided to
conveyer, transfer points, loading and unloading areas.

Total water requirement from Gujarat Water Infrastructure Ltd. (GWIL)
will be 2,165 m3/day. PAs submitted the water allotment letter dated 22nd
October, 2008 from GWIL. Air-cooled condenser will be provided to WHRB.
The waste water from power plant will be treated in neutralization plant.
Treated waste water will be used for water sprinkling during dust
suppression and green belt development. Sewage will be disposed of through
septic tank & soak pit.

Fly ash (2,820 MTPM), bed ash (600 MTPM) will be used in captive
brick manufacturing plant and additionally have a tie up with Cement
manufacturing units. Coal char (5,400 MTPM) will be used in existing power
plant. Slag (5,124 MTPM) will be sold to cement/brick manufacturing units.
Iron ore fines, mill scale, flue dust etc. will be used in Sinter Plant.
BF slag will be granulated and provided to cement manufacturers.
Used/spent oil will be sold to authorized recyclers.

Out of total 100.62 ha, green belt is earmarked for 8 ha. in
existing and 5.47 ha. in proposed expansion. Thus, total 13.47 ha. is
proposed for the green belt development. Coke, coal and waste heat from
DRI will be used as fuel………………………………………………………”

7. After setting out the details of the proposed expansion of the
project as aforesaid, the decision of the Expert Committee was as under:

“The Expert Committee (Industry) decided that PAs may be communicated the
above ‘TORs’ for the preparation of EIA/EMP. As soon as the draft EIA/EMP
report is prepared as per the ‘General Structure of EIA’ given in Appendix
III and IIIA in the EIA Notification, 2006, the same may be submitted by
the PAs to the MOEF for prior Environmental Clearance. PAs informed to the
Committee that Environment Clearance has been accorded to M/s Electrotherm
India Ltd. for the existing plant vide letter dated 20th February, 2008
with public hearing on 12th June, 2007 and requested for the exemption.
The Committee considered the request and exempted from the public hearing
as per Section 7(ii) of EIA Notification, 2006 due to no additional land
requirement, ground water drawl, utilization of DR and BF gases in WHRB &
char in AFBC boiler, fly ash and BF slag to cement manufacturers, etc.”

8. The matter was thereafter considered for grant of Environmental
Clearance which came to be granted by Government of India, Ministry of
Environment and Forests by communication dated 27.01.2010, relevant
portion of which was:-

“The Ministry of Environment and Forests has examined the application. It
is noted that proposal is for the expansion of Steel plant at Milestone
No.310 of NH No.8A, Village-Samkhiyali, Taluka Bhachau, Kutch, Gujarat by
M/s. Electrotherm India Limited. Expansion will be carried out in 21.43 ha
within the existing industrial premises of 11.46 ha. No National Park/Wild
Life Sanctuary/Reserve Forest is located within 10 km radius of the project
site. Total cost of the project is Rs.274.00 crores. Sponge Iron, DI
Pipes, Steel Rolling Mill, Induction Furnace are existing after getting ‘No
Objection Certificate’ from Gujarat Pollution Control Board (GPCB).
‘Consent to Establish’ is also obtained from GPCB vide consent No.
PC/CCA/KUTCH-294/28080, dated 13th September, 2006 and PC/CCA-KUTCH-
294(3)13208 dated 30th April, 2008. Environmental Clearance for the
existing plant (Pig Iron Plant and Captive Power Plant (30 MW) is accorded
vide Ministry’s letter No.J-11011/503/2006-IA-II(I) dated 20th February,
2008. Following are the details of the existing and proposed facilities:

|Sr.No. |Products | Production Capacity |
| | |(MTPM) |
| | |Existing |Proposed |Total |
|1 |Sponge Iron |6,000 |18,000 |24,000 |
|2 |D.I. Pipes |4,000 |12,000 |16,000 |
|3 |Captive Power |30 MW |15 MW |45 MW |
| |WHRB |6 MW |15 MW |21 MW |
| |FBC |24 MW | |24 MW |
|4 |Pig Iron |4,500 |18,600 |23,100 |
| |(Blast | | | |
| |Furnace) | | | |
|5 |Sinter Plant |- |32,400 |32,400 |
|6 |Steel Rolling |5,833 |10,500 |16,333 |
| |Mill | | | |
|7 |MS |5,833 |30,000 |35,833 |
| |Billets/Bars | | | |
|8 |Stainless |25,000 |– |25,000 |
| |Steel Billets | | | |
|9 |Alloy Nickel |416 |– |416 |
|10 |Induction |17Sets/Mo|– |17 sets |
| |Furnaces |nth | | |
|11 |Electric Cycle|83 Sets/ |– |83 sets |
| |and Vehicle |Month | | |

3.0 Sponge Iron will be produced using DRI method. Iron oxide will be
chemically reduce to ‘hot metal’ in blast furnace (BF). Sinter plant will
use iron ore fines, mill scales and flue dust. Sinter produced will be
used in BF. Pig Iron will be heated in induction furnace (IF) to prepare
duct iron pipes. Scrap and sponge iron will be charged to IF and then
poured to ladle refining furnace (LRF) and then molten material will be
changed to continuous casting machine (CCM) to produce billets, rods and
bars. Billets from steel melt shop (SMS) will be put into reheating
furnace to manufacture TMT bars. Waste gases from DRI will be used in
WHRB. No AFBC is proposed during expansion since it already exists.

4.0 Electrostatic precipitator (ESP), dust settling chamber (DSC), after
burning chamber (ABC), gas cleaning system with bag house, bag filters,
multi-cyclones, dust collectors, stack of adequate height, dust suppression
and extraction system will be provided to control air emissions. Total
water requirement from Gujarat Water Infrastructure Ltd. (GWIL) will be
2,165 m³/day and water is allotted vide letter dated 22nd October, 2008.
No ground water will be utilized. Air-cooled condenser will be provided to
WHRB. No waste water will be discharged from sponge iron plant, pig iron
plant, sinter plant, WHRB power plant, TMT bar plant, BI pipe and
induction/arc furnace. The waste water from power plant will be treated
and used for dust suppression and green belt development. Coal char will
be used in existing power plant, coal dust in the boiler, iron ore fines,
mill scales, flue dust etc. in sinter plant. Fly ash will be used in
captive brick manufacturing plant and also provided to cement manufacturing
units.

Slag will be sold to cement/brick manufacturing units. Bed ash will be
disposed off in secured landfills.

5.0 Public hearing for the existing plant was held on 12th June, 2007 and
is exempted for the proposed exemption as per Section-7(ii) of EIA
Notification, 2006.”

9. On or about 10.05.2010 Respondent No.1 herein filed Special Civil
Application No.5986 of 2010 in the High Court of Gujarat, in public
interest, seeking revocation of Environment Clearance granted to the
Appellant for expansion of its plant. It was submitted inter alia that as a
result of expansion the proposed capacity and activities of the Appellant
were to increase substantially and that the Environmental Clearance granted
for expansion of plant was not in conformity with EIA Notification of 2006.
The Appellant which was Respondent No. 3 in the High Court, in its reply
submitted inter alia that the petition was not in public interest and
Respondent No.1 was set up by the business rivals of the Appellant and that
the Appellant had complied with all the norms and requirements and was
rightly granted Environment Clearance for expansion of the plant. The
responses filed on behalf of the Ministry of Environment and Forest, Govt.
of India and Gujarat Pollution Control Board also submitted that the
Environmental Clearance was rightly granted and that the activities of the
Appellant were periodically and regularly being monitored to ensure that
stipulated Environmental safeguards were complied with.

10. After hearing rival submissions, the High Court by its judgment and
order dated 11.5.2012 allowed Special Civil Application No.5986 of 2010
principally on the ground that the Environmental Clearance dated 27.1.2010
was granted without there being public consultation or public hearing which
was a mandatory requirement under 2006 Notification. The observations of
the High Court in that behalf were as under:-

“18. The facts to a certain extent have disturbed us for the simple reason
that respondent no.3 set-up its unit of steel plant in the year 2005 and
started operating the same fullfledge. However, till 2008 they had no
Environmental Clearance and it is only for the first time vide order dated
20th February 2008 Environmental Clearance was granted and that too for
expansion. Subsequently, once again in 2009, they applied for
Environmental Clearance as they proposed to increase the production
capacity almost three times the existing capacity, for which also
Environmental Clearance was granted but without giving any public hearing
or public consultation.

19. Thus, the only question for our consideration is as to whether the
Environmental Clearance dated 27.1.2010 can be termed as illegal in the
absence of public consultation or public hearing as mandatorily provided by
Notifications dated 2006. We agree with learned Counsel Mr. Oza that there
is a basic flaw in the Environmental Clearance granted in favour of
respondent No.3. It is apparent that when public hearing took place in the
year 2007, the same was on the basis of the first application which
respondent No.3 had preferred for expansion of the steel plant. Objections
were raised by the persons concerned. However, when Environmental
Clearance came to be granted vide order dated 27th January 2010 pursuant to
the second application dated 8th June 2009 preferred by respondent no.3 for
enhancing the production capacity, the requirement of public hearing/public
consultation was waived by the authority on the assumption that in the year
2007 public hearing was already undertaken. It is undisputed that in the
year 2007 when the public hearing was given, the objections and suggestions
were taken into consideration by the authority and Environmental Clearance
was accorded in the year 2008 but, thereafter, when the second application
was preferred dated 8th June 2009 for enhancing the production capacity by
more than double, people were not made aware of this proposal of respondent
No.3 and the authority proceeded to accord Environmental Clearance waiving
public hearing.”

The High Court also placed reliance on the pronouncement of this Court in
the case of Lafarge Umiam Mining Private Limited
– T.N. Godavarman Thirumulpad Vs. Union of India and Others[1].
The High Court thus set aside Environmental Clearance dated 27.01.2010 and
directed the appellant to stop operations of the entire plant and further
directed that the operations could be restarted only after fresh
Environmental Clearance was accorded in its favour by the Ministry of
Environmental and Forests and Union of India. The decision of the High
Court is presently under challenge.

11. In this appeal by Special Leave, this Court issued notice on
15.05.2012 and by further order dated 18.05.2012 stayed the operation of
the judgment and order of the High Court. It also directed the Central
Pollution Control Board to file status report in respect of plant and
compliance of statutory requirements by the appellant. On 18.7.2012 an
affidavit was filed on behalf of CPCB stating that during its visit half of
the plant was not in operation and as such actual compliance of the
statutory requirements could not be ascertained. It further stated that
the industry of the Appellant was non-compliant with pollution standards in
one or the other area made certain recommendations.

12. The matter was thereafter taken up on 22.4.2014 when the following
order was passed by this Court:-

“The matter has been almost fully heard. Having regard to the submissions
of the learned senior counsel and the Notifications of 1994 and 2006, it
has become necessary to get the joint inspection done of the petitioner’s
project from the Gujarat Pollution Control Board and Central Pollution
Control Board (CPCB) and report submitted to this Court whether the
petitioners has complied with the recommendations of the Central Pollution
Control Board which are specified in para 7 of the affidavit of Mr. R.K.
Purohit, Senior Executive Director of the petitioner in response to the
affidavit of Central Pollution Control Board dated 18.7.2012.

We, accordingly, direct the Central Pollution Control Board and Gujarat
Pollution Control Board to make a joint inspection of the petitioner’s
project in the 3rd week of June, 2014 and report about the compliance of
the recommendations as set-out in the above affidavit. The report shall be
submitted on or before 5.7.2014. We make it clear that if from the report
it transpires that the petitioner has not yet complied fully with the
recommendations specified in the affidavit noted above, the special leave
petition shall have to be dismissed. On the other hand, if the full
compliance of the above recommendations is found to have been made, the
impugned order of the High Court will be set-aside…………………………”

13. In the affidavit filed on 07.07.2014 on behalf of CPCB it was
stated inter alia that pursuant to the order dated 22.04.2014 passed by
this Court, a joint inspection was carried out as directed and that the
industry of the Appellant had complied with most of the recommendations,
though there were still certain shortcomings.

14. The matter was thereafter taken up for hearing. Appearing in support
of the appeal Dr. A.M. Singhvi, learned Senior Advocate submitted that most
of the recommendations made in the affidavit dated 18.07.2012 having been
complied with, the matter now stood in a narrow compass. Mr. Huzefa
Ahmadi, learned Senior Advocate appearing for Respondent No.1 however
submitted that the infirmity on account of absence of public hearing/public
consultation which is a mandatory requirement under the EIA Notification of
2006, rendered the Environmental Clearance dated 27.01.2010 invalid and
illegal.

15. The facts on record are clear that while granting Environmental
Clearance on 20.02.2008, public consultation/public hearing was undertaken
on 12.06.2007. As on that date the status of the project was that the
capacity of Pig Iron Plant was to be 350 TPD, Power Plant to be 24 MW, the
total cost of the project was 90.00 crores and the total Water requirement
was 650 M?/Day. The High Court was absolutely right that after expansion
the capacity of the plant was to increase three-fold. The tabular chart
given in Environmental Clearance dated 27.01.2010 itself shows the
tremendous increase in the capacity. Consequently, the pollution load
would naturally be of greater order than the one which was contemplated
when the earlier public consultation/public hearing was undertaken on
12.08.2007. Further, the water requirement had also risen from 650 M?/Day
to 2165 M?/Day. The increase in pollution load and water requirement were
certainly matters where public in general and those living in the vicinity
in particular had and continue to have a stake.

16. Public consultation/public hearing is one of the important stages
while considering the matter for grant of Environmental Clearance. The
minutes of the meetings held on 9-11 February, 2009 show that the request
of the Appellant for exemption from the requirement of public hearing was
accepted by the Committee. The observations of the Committee suggest that
there would be no additional land requirement, ground water drawl and
certain other features. However the water requirement, which is a
community resource, was definitely going to be of greater order in addition
to the fact that the expansion of the project would have entailed
additional pollution load.

17. It must be stated here that after EIA Notification of 2006 a draft
Notification was issued on 09.01.2009 wherein an amendment was suggested in
paragraph 7(ii) of EIA Notification dated 14.09.2006 to the effect that in
cases of expansion of projects involving enhancement by more than 50%
holding of public consultation/public hearing was essential; implying
thereby that in cases where expansion was less than 50% public
consultation/public hearing could be exempted. Without going into the
question whether public consultation/public hearing could be so exempted,
it is relevant to note that this idea in the draft Notification was not
accepted, after a Committee constituted to advise in the matter had given
its report on 30.10.2009 to the contrary. As a result, the final
Notification dated 01.12.2009 did not carry or contain the amendment that
was suggested by way of draft Notification. Consequently, no exemption on
that count could be given when the Environmental Clearance came to be
issued on 27.01.2010.

18. In the case of Lafarge (supra) public consultation/public hearing was
considered and found to be mandatory requirement of the Environmental
Clearance process by this Court. In its conclusions culled out in
paragraph 122 (xiv) as regards public consultation/public hearing, it was
observed by this Court:-

“(xiv) The public consultation or public hearing as it is commonly known,
is a mandatory requirement of the Environment Clearance process and
provides an effective forum for any person aggrieved by any aspect of any
project to register and seek redressal of his/her grievances.

19. At the same time the observations by this Court while summing up the
discussion in paragraph 119 are quite eloquent:-
“……It cannot be gainsaid that utilization of the environment and its
natural resources has to be in a way that is consistent with principles of
sustainable development and intergenerational equity, but balancing of
these equities may entail policy choices. In the circumstances, barring
exceptions, decisions relating to utilization of natural resources have to
be tested on the anvil of the well-recognised principles of judicial
review. Have all the relevant factors been taken into account? Have any
extraneous factors influenced the decision? Is the decision strictly in
accordance with the legislative policy underlying the law (if any) that
governs the field? Is the decision consistent with the principles of
sustainable development in the sense that has the decision-maker taken into
account the said principle and, on the basis of relevant considerations,
arrived at a balanced decision? Thus, the Court should review the decision-
making process to ensure that the decision of MoEF is fair and fully
informed, based on the correct principles, and free from any bias or
restraint.”

In terms of the principles as laid down by this Court in the case of
Lafarge (supra), we find that the decision making process in doing away
with or in granting exemption from public consultation/public hearing, was
not based on correct principles and as such the decision was invalid and
improper.

20. At the same time, we cannot lose sight of the fact that in pursuance
of Environmental Clearance dated 27.01.2010, the expansion of the project
has been undertaken and as reported by CPCB in its affidavit filed on
07.07.2014, most of the recommendations made by CPCB are complied with. In
our considered view, the interest of justice would be sub-served if that
part of the decision exempting public consultation/public hearing is set
aside and the matter is relegated back to the concerned Authorities to
effectuate public consultation/public hearing. However, since the
expansion has been undertaken and the industry has been functioning, we do
not deem it appropriate to order closure of the entire plant as directed by
the High Court. If the public consultation/public hearing results in a
negative mandate against the expansion of the project, the Authorities
would do well to direct and ensure scaling down of the activities to the
level that was permitted by Environmental Clearance dated 20.02.2008. If
public consultation/public hearing reflects in favour of the expansion of
the project, Environmental Clearance dated 27.01.2010 would hold good and
be fully operative. In other words, at this length of time when the
expansion has already been undertaken, in the peculiar facts of this case
and in order to meet ends of justice, we deem it appropriate to change the
nature of requirement of public consultation/public hearing from pre-
decisional to post-decisional. The public consultation/public hearing
shall be organized by the concerned authorities in three months from today.

21. This appeal therefore stands disposed of with the aforesaid
modifications. No order as to costs.

…..…………………CJI.
(T. S. Thakur)

….……………………J.
(R. Banumathi)

…………………………J (Uday Umesh Lalit)
New Delhi,
August 02, 2016

———————–
[1] 2011 (7) SCC 338

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