A) ABSTRACT / HEADNOTE

The present Review Petition arises from the judgment dated 16 May 2025 in Vanashakti v. Union of India, wherein the Supreme Court struck down the 2017 Notification and the 2021 Office Memorandum (OM) permitting grant of ex post facto Environmental Clearances (ECs) under the Environment (Protection) Act, 1986. The Review Petitioner, Confederation of Real Estate Developers of India (CREDAI), sought recall of the judgment on the ground that binding precedents including Electrosteel Steels Ltd. v. Union of India (2023) 6 SCC 615, D. Swamy v. Karnataka State Pollution Control Board (2023) 20 SCC 469, and Pahwa Plastics Pvt. Ltd. v. Dastak NGO (2023) 12 SCC 774 were not duly considered. The Court examined the doctrine of judicial discipline, scope of review under Article 137, interpretation of Section 3 of the 1986 Act, and the permissibility of ex post facto ECs in light of environmental jurisprudence. The Court reconciled its earlier rulings in Common Cause v. Union of India (2017) 9 SCC 499 and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020) 17 SCC 157 with later decisions endorsing limited regularisation in exceptional circumstances. The judgment critically re-evaluates proportionality, polluter pays principle, sustainable development, and separation of powers in environmental governance.

Keywords: Ex Post Facto Environmental Clearance, Environment Protection Act 1986, Judicial Discipline, Review Jurisdiction, Sustainable Development, Polluter Pays Principle.

B) CASE DETAILS

i) Judgment Cause Title: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr.

ii) Case Number: Review Petition (C) Diary No. 41929 of 2025 in W.P.(C) No. 1394 of 2023

iii) Judgment Date: 18 November 2025

iv) Court: Supreme Court of India

v) Quorum: Bench led by Chief Justice B.R. Gavai

vi) Author: B.R. Gavai, CJI

vii) Citation: 2025 INSC 1326

viii) Legal Provisions Involved: Section 3, Section 19 of the Environment (Protection) Act, 1986; Rule 5(3)(d) of the Environment (Protection) Rules, 1986; Section 21 of the General Clauses Act, 1897; EIA Notification 2006; Notification S.O. 804(E) dated 14.03.2017; Office Memorandum dated 07.07.2021.

ix) Judgments overruled by the Case: None expressly overruled; interpretative clarification undertaken.

x) Law Subjects: Constitutional Law, Environmental Law, Administrative Law.

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The litigation originates from challenges to the 2017 Notification, issued under Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986, enabling appraisal of projects commenced without prior EC. The notification created a six-month compliance window. It prescribed environmental damage assessment and remediation. Later, pursuant to NGT directions in Tanaji B. Gambhire v. State of Maharashtra, the 2021 OM framed a Standard Operating Procedure for violation cases. In the principal judgment of May 2025, the Court struck down both instruments. It held ex post facto EC alien to environmental jurisprudence, relying primarily on Common Cause (2017) and Alembic Pharmaceuticals (2020). The Review Petition argued that subsequent binding decisions permitted conditional regularisation. The case thus involved harmonisation of precedent, constitutional limits of delegated legislation, and scope of review power.

D) FACTS OF THE CASE

The Ministry of Environment issued the EIA Notification 2006, mandating prior EC for scheduled projects. In 2017, the Central Government issued Notification S.O. 804(E) permitting appraisal of violation cases. Projects already commenced could seek clearance subject to damage assessment and penalties. The window operated initially for six months. The Madras High Court recorded it as a one-time measure. Later, the NGT directed formulation of SOPs. Consequently, the 2021 OM structured procedures for identifying violations, applying polluter pays principle, and considering closure where projects were impermissible. Multiple writ petitions challenged these instruments. The Supreme Court, in May 2025, quashed them. It restrained the Government from issuing similar circulars. However, previously granted ECs remained unaffected. CREDAI filed review. The Union and States supported reconsideration. Environmental groups opposed maintainability.

E) LEGAL ISSUES RAISED

i. Whether ex post facto Environmental Clearances are per se impermissible under environmental jurisprudence.

ii. Whether the 2017 Notification was ultra vires Section 3 of the 1986 Act.

iii. Whether failure to consider binding precedents constitutes error apparent on the face of record under Article 137.

iv. Whether judicial discipline required reference to larger Bench.

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsels for Petitioner submitted that Electrosteel Steels Ltd. (2023) 6 SCC 615 expressly held that the 1986 Act does not prohibit ex post facto EC. The Court therein recognised exceptional regularisation. It balanced environmental norms with economic consequences. Petitioners argued omission to consider this binding ratio rendered the principal judgment per incuriam. They invoked D. Swamy (2023) 20 SCC 469, which upheld validity of the 2017 Notification as statutory. They contended Section 21 of the General Clauses Act empowered modification of notifications. It was submitted that proportionality must guide remedy. Demolition of completed infrastructure would harm public interest. Reliance was placed on Lafarge Umiam Mining (2011) 7 SCC 338 recognising ex post facto appraisal in peculiar circumstances.

G) RESPONDENT’S ARGUMENTS

The counsels for Respondent submitted that review cannot become appeal. They relied on Common Cause (2017) 9 SCC 499, where ex post facto EC was declared alien. They cited Alembic Pharmaceuticals (2020) 17 SCC 157 stating retrospective clearance undermines precautionary principle. They argued the 2017 Notification diluted mandatory prior clearance. It encouraged violators. They asserted environmental degradation is irreversible. Polluter must suffer consequences. They contended economic hardship cannot override statutory mandate. Judicial discipline required adherence to earlier larger Bench rulings.

H) RELATED LEGAL PROVISIONS

i. Section 3(1) of the Environment (Protection) Act, 1986 empowers measures to protect environment. It enables issuance of notifications imposing safeguards.

ii. Section 19 of the 1986 Act provides prosecution mechanism. It authorises complaint by government or authorised person.

iii. Rule 5(3)(d) of the Environment (Protection) Rules, 1986 prescribes procedure for notification after considering objections.

iv. Section 21 of the General Clauses Act, 1897 permits amendment or rescission of notifications.

I) PRECEDENTS ANALYSED BY COURT

i. The Court revisited Common Cause v. Union of India (2017) 9 SCC 499. It held retrospective EC impermissible. However, mining operations could resume after compliance and payment of compensation.

ii. It analysed Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020) 17 SCC 157. There, administrative circular enabling ex post facto EC was quashed. Yet closure was declined. Instead, Rs.10 crore compensation imposed per unit.

iii. The Court examined Electrosteel Steels Ltd. v. Union of India (2023) 6 SCC 615. It recognised that ex post facto EC is not ordinarily granted. However, in exceptional cases, regularisation may occur with heavy penalties.

iv. It considered D. Swamy v. KSPCB (2023) 20 SCC 469. It upheld 2017 Notification as valid statutory instrument. It clarified EP Act does not prohibit ex post facto EC.

v. It referred to Pahwa Plastics Pvt. Ltd. v. Dastak NGO (2023) 12 SCC 774. It reiterated proportionality and polluter pays principle.

J) JUDGEMENT

a) Ratio Decidendi

The Court held omission to consider binding precedents constituted error apparent. Judicial discipline demands consistency. Ex post facto EC is not per se barred. However, it cannot be routine. The 1986 Act does not expressly prohibit it. Section 3 empowers modification. Proportionality must guide remedy. Complete demolition is not automatic. Polluter pays principle applies. Each case requires appraisal. Blanket prohibition was unsustainable.

b) Obiter Dicta

Environmental governance requires balance. Economic development and ecology are not adversaries. Sustainable development integrates both. Courts must avoid rigid absolutism.

c) Guidelines

i. Ex post facto EC may be granted only exceptionally.

ii. Detailed EIA mandatory.

iii. Damage assessment compulsory.

iv. Heavy compensation to be imposed.

v. Projects impermissible in law must be closed.

vi. Decisions must record reasons.

vii. No routine regularisation.

K) CONCLUSION & COMMENTS

The judgment harmonises conflicting strands of precedent. It restores doctrinal coherence. It affirms that environmental protection is paramount. Yet proportionality tempers enforcement. The ruling clarifies that statutory silence does not equal prohibition. It strengthens polluter pays doctrine. It underscores judicial discipline. It preserves economic stability while safeguarding ecology.

L) REFERENCES

a) Important Cases Referred

i. Common Cause v. Union of India, (2017) 9 SCC 499
ii. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157
iii. Electrosteel Steels Ltd. v. Union of India, (2023) 6 SCC 615
iv. D. Swamy v. Karnataka State Pollution Control Board, (2023) 20 SCC 469
v. Pahwa Plastics Pvt. Ltd. v. Dastak NGO, (2023) 12 SCC 774
vi. Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338

b) Important Statutes Referred

i. Environment (Protection) Act, 1986
ii. Environment (Protection) Rules, 1986
iii. General Clauses Act, 1897