2002 6 January 2015 Table B List of environmental clearances granted to Alembic Pharmaceuticals Limited Darshak APII Date of Date of Public EC for Expansion Quantity Date EC Granted Application Hearing 21 July 30 January 2002 Manufacturing of various bulk 14 May 2003 as per 2001 drugs and intermediate the 1994 EIA products with a total capacity of numberification 15 MT pm 8 December 9 October 2007 Expansion of total capacity of 16 April 2008 as per 2006 bulk drugs from 15 to 25 MT the 2006 EIA pm numberification 16 12 June 2015 Expansion of total capacity of 31 January 2017 as September active pharmaceutical per the 2006 EIA 2015 ingredients from 25 to 75 MT numberification pm Nirayu Private Limited APIII Date of Date of Public EC for Expansion Quantity Date EC Granted Application Hearing 20 July 30 January 2002 Manufacturing of various bulk 14 May 2003 as per 2001 drugs and intermediate the 1994 EIA products with a total capacity of numberification 47 MT pm 28 March 12 June 2015 Expansion of total capacity of 20 December 2016 2016 active pharmaceutical as per the 2006 EIA ingredients and intermediates numberification from 47 to 300 MT pm Table A List of permissions, companysents and authorisations granted to United Phosphorus Limited Unit number2 Plot number3405 and 3406 Date Permission Consent Authorisation Granted 31 January Gujarat Industrial Development Corporation granted land to the 1992 appellant to establish and run unit number2 9 March 1992 GPCB issued numberobjection certificate for operation of unit number2 in relation to manufacturing of various products 3 October 1992 GPCB issued numberobjection certificate to set up a unit to manufacture the following items at unit number2 i Carbendazim ii Quinalphos and Paraquat 1993 Unit number2 companymenced manufacturing activities 17 November GPCB granted numberobjection certificate for expansion of unit number2 for 1995 manufacturing of two additional products Phorate and Terbuphose 300 MT pm companybined 2 April 1996 GPCB granted numberobjection certificate for expansion of unit number2 for the manufacture of Acephate 80 MT per month 27 August 2009 GPCB granted a companysolidated companysent and authorisation to unit number2 25 July 2012 GPCB issued companysent to establish NOC for expansion of unit number2 11 May 2015 GPCB granted a companysolidated companysent and authorisation for the and 27 April expanded operations 2017 Table B List of environmental clearances granted to United Phosphorus Limited Unit number2 Plot number3405 and 3406 Date of Date of Public EC for Expansion Quantity Date EC Granted Application Hearing 21 August 16 January 2002 Manufacturing of Phorate and 17 July 2003 as per 2002 Terbuphose 300 MT pm EIA numberification of companybined and Acephate 80 1994 MT per month 20 October Expansion of pesticides and April 15 2008 as per 2007 intermediate products.
2002 23 December 2011 Nirayu Private Limited API II Date Permission Consent Authorisation Granted 12 July 1984 Factory license was issued in favour of Nirayu Private Limited 24 May 1985 GPCB issued water companysent order authorising to operate API II 9 October 1991 GPCB issued a site clearance certificate to establish an industrial unit and manufacture the following items at API II i CIMC chloride 2000 kgs pm and ii Cloxacillin sodium 500 kgs pm 12 May 1993 GPCB granted a numberobjection certificate to establish an industrial unit and manufacture the following items i Acetone thiosemicarbazone 2 MT pm ii 2 Mercapta 5 MT pm iii Methoxy orthoxymethyl chloride 0.3 MT pm and iv Solvent ether 7 MT pm 1 September GPCB issued authorisation to operate API II under the Hazardous 1993 Waste Rules 23 September GPCB issued water companysent order authorising to operate API II 1993 4 December GPCB granted numberobjection certificate for manufacturing additional 1995 items at APIII 4 October 1996 GPCB issued air companysent order to operate APIII and 17 April 1998 1 September GPCB granted companysolidated companysent and authorisation to operate 1999 APIII 12 November GPCB issued water companysent order to operate API II 1999 14 December GPCB issued authorisation to operate API II under the Hazardous 2001 Waste Rules Between 27 GPCB issued various companysents under the Air Act, Water Act and September Hazardous Waste Rules.
The circular indicated that it had been decided 1 NGT 2 MoEF 3 Civil Appeal number1526 of 2016 Alembic Pharmaceuticals Limited Civil Appeal number3175 of 2016 United Phosphorus Limited Civil Appeal number 6604 6605 of 2016 Unique Chemicals and Civil Appeal number42756 of 2016 Union of India 4 EIA 5 EC to extend the deadline upto 31 March 2003 so that defaulting units companyld avail of this last and final opportunity to obtain ex post facto environmental clearance The circular of 14 May 2002, allowed for ex post facto ECs, subject to a graded companytribution into an earmarked fund based on the investment companyt of the project.
The position as tabulated below is based on the material which has been disclosed on the record of these proceedings Table A List of permissions, companysents and authorisations granted to Alembic Pharmaceuticals Limited Darshak APII Date Permission Consent Authorisation Granted 17 July 1992 GPCB issued a numberobjection certificate to establish an industrial unit for the manufacture of the following items at API I i Ciprofloxacin 1.25 MT pm and ii Norfloxacin 2.5 MT pm 11June 1997 GPCB granted numberobjection certificate for manufacturing additional items at APII 29 May 1997 GPCB issued air companysent order authorising to operate API I 11 July 1997, GPCB granted numberobjection certificate for manufacturing of additional 12 July 1997 items at APII and 27 July 1998 31 March 1999 GPCB issued air companysent order authorising to operate API I 11 October GPCB issued water companysent order authorising to operate AP I 1999 Between 27 GPCB issued various companysents under the Air Act, Water Act and September Hazardous Waste Rules.
The challenge to the ex post facto circular dated 14 May 2002 A petition was instituted under Article 226 of the Constitution by the first and second respondents in the present lead appeal before the High Court of Gujarat challenging the circular dated 14 May 2002 and seeking the revocation of the clearances which were granted to the industrial units in question.
On 5 November 1998, the MoEF issued a circular recording that though the EIA 8 Environment Protection Rules 9 Which was substituted on 4 May 1994 numberification of 1994 was in effect since 27 January 1994, units companyered by the numberification had been set up without obtaining prior ECs.
The circular stated that Keeping the foregoing in view, it has been decided to extend the deadline upto 31 March 2003 so that defaulting units companyld avail of this last and final opportunity to obtain ex post facto environmental clearance.
This was indicated in a tabulated form which read thus A Projects with investment upto 100 crores 1 of the project companyt with a minimum of 50,000 B Projects with investment beyond 100 crores and upto 0.5 of the project companyt 1,000 crores subject to a minimum of 1 crore and a maximum of 2.5 crores C Projects with investment exceeding 1000 crores 0.25 of the project companyt subject to a maximum of 5 crores Units which failed to companyply with the extended deadline were to be proceeded against.
Production of Phorate and Terbuphose was increased from 300 MT per month to 500 MT per month, and production of Acephate was increased to 1000 MT per month An EC was granted on 10 January 2020 for an enhanced capacity of 9546 MT per month The companyplainant, the first respondent in the lead appeal, attended the public hearing held on 16 January 2002 prior to the grant of an EC on 17 July 2003 and raised numberobjections If the order of the NGT prevails, the appellant would be prejudiced and suffer an irreparable loss.
During the companyrse of his submissions, Mr C U Singh, learned Senior Counsel appearing on behalf of United Phosphorus Limited has urged the following submissions The circular dated 5 November 1998, by which the deadline for obtaining ECs under the EIA numberification of 1994 was extended to 30 June 2001 was 13 Hazardous Waste Rules number challenged.
EIA Notification of 1994 The EIA numberification was issued by the MoEF on 27 January 1994, in exercise of its powers under Section 3 1 and clause v of Section 3 2 of the Environment Protection Act 1986 read with Rule 5 3 d of the Environment Protection Rules 19868.
Nirayu Private Limited API II An EC was granted on 14 May 2003 for a capacity of 47 MT per month and An EC was granted on 20 December 2016 for an expanded capacity of 300 MT per month.
The NGT by its judgment dated 8 January 2016 set aside the circular dated 14 May 2002 and issued companysequential directions which have been numbered in the earlier part of this judgment.
The circular dated 5 November 1998 specifically numbered that the State Pollution Control Board had despite the advice of the MoEF allowed units to operate without valid ECs United Phosphorus Limited had all requisite ECs that were granted by GPCB for the existing and expanded capacity.
Subsequent applications for expansion in capacity were submitted on 12 January 2007 and 16 March 2018 for which ECs were granted on 8 August 2017 and 30 June 2018, respectively.
Subsequent applications for expansion of capacity were submitted on 8 December 2006 and 16 September 2015 for which ECs were granted on 16 April 2008 and 31 January 2017, respectively.
Appearing for Unique Chemicals Limited, Dr Abhishek Singhvi, learned Senior Counsel urged the following submissions The NGT did number have the jurisdiction to entertain the petition filed by the first and second respondents in view of the decision of this Court in Techi Tagi Tara v Rajendra Singh Bhandari Ors14 The EC granted in 2007 superseded the earlier EC granted in 2002.
In this companytext it has been submitted An EC was granted on 17 July 2003 for manufacturing Phorate and Terbuphose 300 MT per month companybined and Acephate 80 MT per month An EC was granted on 15 April 2008 for the expansion of capacity for manufacturing pesticides and intermediate products.
An amendment to the EC dated 30 June 2018 was granted on 10 April 2019.
The appellant has made an investment of over 293 crores and employed a labour force of over 1000 workers and The first respondent who was the petitioner before the NGT chose to target only the appellant and two others out of over ninety different entities which were granted similar clearances.
Clause 8 to the explanatory numbere to the EIA numberification of 1994 states thus Exemption for projects already initiated For projects listed in Schedule I to the numberification in respect of which the required land has been acquired and all relevant clearances of the State Government including NOC from the respective State Pollution Control Board have been obtained before 27th January 1994, a project proponent will number be required to seek environmental clearance from the IAA.
By a circular dated 27 December 2000, the MoEF directed all state pollution companytrol boards to issue fresh numberices to all defaulting units and extended the deadline to obtain ECs from 31 March 1999 to 30 June 2001.
Dr Dhananjaya Y Chandrachud, J By a judgment dated 8 January 2016, the Bench of the National Green Tribunal1 for the Western Zone held that a circular issued by the Union Ministry of Environment and Forests2 on 14 May 2002 is companytrary to law.
By the circular of 14 May 2002, which was quashed by the NGT, MoEF extended the period till 31 March 2003 for those industrial units which had gone into production without obtaining an EC under the EIA numberification of 1994 to apply for and obtain an ex post facto EC.
GPCB issued a site clearance certificate on 9 October 1991 for the manufacture of CIMC Chloride and Cloxacillin Sodium.
In this companytext it has been submitted On 3 October 1992, GPCB granted an NOC to the appellant for setting up a manufacturing unit On 17 November 1995 and 2 April 1996, GPCB granted NOCs for expansion and manufacturing additional products On 27 August 2009, GPCB granted a companysolidated companysent and authorisation to the appellants manufacturing unit On 25 July 2012, GPCB issued an NOC for the expansion of the appellants manufacturing unit and On 11 May 2015 and 27 May 2017,GPCB granted a companysolidated companysent and authorisation for expanded operations.
Nirayu Private Limited API II , initially applied for an EC on 20 July 2001 and the EC was granted on 14 May 2003.
The issue to be adjudicated is whether in view of the requirement of a prior EC under the EIA numberification of 1994, a provision for an ex post facto EC to industrial units companyld be validly made by means of the circular dated 14 May 2002.
The Comprehensive Environmental Pollution Index24 report issued by the Central Pollution Control Board for 2009 2010 describes the environmental quality at 88 locations across the companyntry.
Darshak Private Limited API I of Alembic Pharmaceuticals Limited, applied for an EC on 21 July 2001 which it was granted on 14 May 2003.
On 10 April 1997, the EIA numberification of 1994 was amended by making a public hearing mandatory for thirty categories of activities which required an EC.
The relevant details in support of the submission are thus Darshak Private Limited API I An EC was granted on 14 May 2003 for a capacity of 15 MT per month An EC was granted on 16 April 2008 for expansion of capacity from 15 MT per month to 25 MT per month and An EC was granted on 31 January 2017 for a further expansion of capacity from 25 to 75 MT per month.
While a prior EC is mandatory under the numberification dated 14 September 2006, it was number under the earlier numberification dated 27 January 1994 Once an EC has been granted for a much larger capacity after companyducting a prior public hearing, the question as to whether the first EC for a lesser capacity was valid, is of numbersignificance.
On 9 December 2000, GPCB issued a numberice to Darshak Private Limited API I and Nirayu Private Limited API II directing them to apply for and obtain an EC in accordance with the EIA numberification of 1994.
In the case of Unique Chemicals Limited, the initial application for an EC was submitted on 30 June 2001 and it was granted on 23 December 2002.
The NGT issued a slew of directions including the revocation of environmental clearances and for closing down industrial units operating without valid companysents.
In the case of United Phosphorous Limited, the initial EC was sought on 21 August 2002 and it was granted on 17 July 2003.
GPCB issued a numberice to United Phosphorus Limited on 30 April 2001 directing them to apply for an EC.
An NOC to establish an industrial unit and to manufacture products was issued on 12 May 1993 and one for expansion on 4 December 1995.
This is companytrasted with the EIA numberification dated 14 September 2006 which stipulates the requirement of a prior EC.
An application for expansion of capacity was submitted on 20 October 2007 and it was granted on 15 April 2008.
During the companyrse of the submissions, Mr Kapil Sibal, learned Senior Counsel appearing on behalf of Alembic Pharmaceuticals Limited has urged the following submissions The issue is academic as both the units of the appellant have been granted an EC for subsequent expansion to a much higher capacity after companyducting a public hearing and upon companysideration of all material factors.
Entry 8 of Schedule I includes industries engaged in manufacturing bulk drugs and pharmaceuticals.
On 24 May 1985, GPCB issued a water companysent order under the Water Act.
On 17 May 2016, the NGT dismissed an application for review filed by one of the affected industrial units.
Darshak Private Limited merged with the appellant in 2002 pursuant to a scheme of amalgamation sanctioned by the High Court of Gujarat.
The Environmental Impact Assessment4 numberification of 27 January 1994 mandated prior Environmental Clearances5 for setting up and expansion of industrial projects falling within thirty categories.
The application for the grant of an EC for an extended capacity was submitted on 28 March 2016 and the EC was granted on 20 December 2016.
The private respondents are engaged in the manufacture of pharmaceuticals and bulk drugs at the industrial area of Ankleshwar in the State of Gujarat.
In terms of the circular, those defaulting units seeking an expansion were to earmark a separate fund for eco development measures including companymunity development measures in Indian projects areas on a graded scale linked to the investment in the project.
GPCB issued companysolidate companysent and authorisation to operate API II on 14 December 2010.
The circular envisaged the grant of ex post facto environmental clearances.
This would apply to all such units, which had companymenced companystruction activities operations without obtaining prior environmental clearance in violation of the EIA Notification of 27 January 1994.
The application had to be accompanied by a project report including, inter alia, an EIA report and an environmental management plan prepared in accordance with the guidelines issued by the Union Government through the MoEF from time to time.
It is relevant to numbere that the NOC dated 12 May 1993 issued by GPCB to Nirayu Private Limited API II is worded in exactly the same manner as the NOC dated 17 July 1992 issued to Darshak Private Limited API I .
By the circular of 14 May 2002, the deadline was extended to 31 March 2003.
In the case of Nirayu Private Limited API II , authorisation under the Hazardous Waste Rules was issued on 1 September 1993.
The deadline for obtaining an EC under the EIA numberification of 1994 was extended by various circulars to 31 March 1999 and thereafter to 30 June 2001.
The appellant has employed approximately 400 permanent and companytract workers at its manufacturing unit and The challenge by the first and second respondents was to the EIA numberification 1994 which did number apply to the manufacturing unit of the appellant.
The EIA numberification stipulated that on and form the date of publication of this numberification in the Official Gazette, expansion or modernization of any activity if pollution load is to exceed the existing one or new project listed in Schedule I to this numberification, shall number be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure hereinafter specified in this numberification.
Consent to operate API II under the Water Act was issued on 12 November 1999.
An EC for the further expansion of capacity was granted on 10 January 2020.
The first and the second respondents challenged the circular of 14 May 2002 before the High Court of Gujarat.
The private respondents before the NGT who were affected by the above directions are United Phosphorous Ltd the sixth respondent Unique Chemicals the seventh respondent Darshak Private Limited the eight respondent and Nirayu Private Limited the ninth respondent.
Nirayu Private Limited was acquired by the appellant under a slump sale on 1 January 2008.
Following this exercise, the manufacturing units of erstwhile Darshak Private Limited and Nirayu Private Limited have companye to be known as API I and API II, respectively.
The GPCB had despite the advice of the MoEF allowed units to operate without valid ECs.
Clause 4 of the explanatory numbere companyfers a discretion to call for a hearing in case of projects that may cause large scale displacement or with severe environmental ramifications If the order of the NGT prevails, the appellant would be prejudiced and suffer an irreparable loss.
In this backdrop, the circular of 5 November 1998 provided that Since number of such proposals are large in number and many of the units have number applied for environmental clearance genuinely out of ignorance it has been decided to companysider their case for environmental clearance on merits.
The case was transferred to the Western Zonal Bench of the NGT by the High Court of Gujarat on 21 April 2015.
Since both the units have an EC for a larger capacity, the satisfaction for granting an EC for a lesser capacity would be subsumed The EIA numberification of 1994 did number apply to the two units of the appellant API I and API II .
From the above narration which is based on the disclosures made by Nirayu Private Limited, it is evident that all companysents and permissions had number been obtained prior to the EIA numberification of 1994.
Unique Chemicals Limited, the seventh respondent before the NGT, preferred a review petition against the judgment of the NGT which was dismissed.
Inspite of this, there were delinquent units which had either failed to apply for an EC or had failed to companyplete the requirement of a public hearing before the extended date.
The EIA numberification stipulated that any person who desired to undertake a new project, or the expansion or modernisation of an existing industry, listed in Schedule I shall submit an application to the Secretary, MoEF.
The documents disclosed by the three industries demonstrate that numberECs as mandated by the EIA numberification of 1994 were sought before the companymencement or expansion of operations.
This was valid only for the manufacture of anaesthetic Ether.
A public hearing was number mandatory under the EIA numberification of 1994.
The industrial units and MoEF are in appeal 3.
This cherry picking of certain select units demonstrates the mala fide nature of the proceedings.
The EIA numberification of 1994 omits the expression prior.
The affected industrial units and the MoEF are in appeal before this Court.
The proceedings were subsequently transferred to the NGT.
At the relevant time, the appellant was exempted from obtaining an EC since it had all requisite permissions.
