TCTC - 16

5TH NATIONAL MOOT COURT COMPETITION, 2023 – 2024

IN THE HONORABLE HIGH COURT OF PASOORI

ORIGINAL WRIT JURISDICTION

WRIT PETITION-2023
(UNDER ARTICLE 226 OF THE CONSTITUTION OF PASOORI)

IN THE MATTER OF

PEOPLE FOR ENVIRONMENT (PFE) …PETITIONER

V.
SHAIN TECH PVT. LTD (STPL) …RESPONDENT

MEMORANDUM IN BEHALF OF THE PETITIONERS

 TABLE OF CONTENTS

SUMMARY OF FACTS......................................................................PAGE 2
STATEMENT OF JURISDICTION......................................................PAGE 3
STATEMENT OF ISSUES...................................................................PAGE 4
SUMMARY OF ARGUMENTS............................................................PAGE 5
ARGUMENTS ADVANCED................................................................PAGE 6

1.Whether the petition filed by the NGO is maintainable

2. Whether obtaining of Environmental clearance is mandatory under the

Environment Protection Act, 1986?

3. Whether the “freedom of trade” of STPL is violated if the operations

of the factory is stopped?

4. Does the continued operation of STPL constitute a violation of right

to environment?

PRAYER FOR RELIEF.....................................................................PAGE

 SUMMARY OF FACTS

1. Indica has hailed the biggest asset for the foreign businesses in expanding their
market and opportunities to several and gaining in education and employment.

2. An NGO named 'People for Environment' (PFE) filed a writ petition at the
High Court of Pasoori that a factory 'Shian Tech Pvt. Ltd.' (STPL) was carrying
out business without obtaining the mandatory 'Environmental Clearance' (EC)
under the Environmental Protection Act, 1986.

3. PFE prayed to immediately pass orders to stop the operations of STPL. STPL
has maintained that it is not mandatory for them to obtain the environmental
clearance and they have not been involved in degrading the environment, hence
they should be allowed to continue their operations.

4. Meanwhile, PFE brings to notice the environmental jurisprudence Precautionary

Principle which applies and hence causing pollution is immaterial and
Environmental Clearance is mandatory.

5. The communication of the Pasoori State Pollution Control Board (PSPCB) to

STPL has made it clear that Environmental Clearance is not mandatory to
operate the factory instead a certificate of commencement of business is
sufficient. PSPCB carried out an enquiry and found that STPL had not caused
any environmental pollution.

6. The Government of Indica budget report notes that STPL had made substantial
contributions towards revenue generation and foreign exchange reserves. The
Government of Indica budget report notes that STPL had made substantial
contributions towards revenue generation and foreign exchange reserves.
 STATEMENT OF JURISDICTION

The Respondent approached the Hon’ble High Court by filing a writ petition as per
Article 226 of the Constitution of Pasoori for obtaining of Environmental clearance has a
mandatory under the Environment Protection Act, 1986, the freedom of trade of the
respondent is violated if the operations of the factory is stopped and the continued
operation of the respondent factory is not in violation of right to environment.

Remedies for enforcement of rights conferred by this Part -

(1) The right to move the High Court by appropriate proceedings for the obtainment of
environment clearance has a mandatory regulation which is guaranteed under this Part.

(2) The High Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.

(3) Without prejudice to the powers conferred on the High Court by clauses (1) and
(2), Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the High Court under clause
(2).

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.
 STATEMENT OF ISSUES

ISSUE – 1
Whether the petition filed by the NGO is maintainable

ISSUE – 2
Whether obtaining of Environmental clearance is mandatory under the
Environment Protection Act, 1986?

ISSUE – 3
Whether the “freedom of trade” of STPL is violated if the operations of the
factory is stopped?

ISSUE – 4
Does the continued operation of STPL constitute a violation of right to
environment?

SUMMARY OF ARGUMENTS
 ISSUE – 1
Whether the petition filed by the NGO is maintainable
It is humbly submitted that the petition is maintainable, as Right to
Quality environment has been recognized as Fundamental Right under Article 21.

ISSUE – 2
Whether obtaining of Environmental clearance is mandatory under the
Environment Protection Act, 1986?
Yes. Through various regulations released by MoEF has stressed on prior EC
before commencement of project and not obtaining the same shall be deemed as
violation of Environment Protection Act

ISSUE – 3
Whether the “freedom of trade” of STPL is violated if the operations of the
factory is stopped?

ISSUE – 4
Does the continued operation of STPL constitute a violation of right to
environment?
 ARGUMENTS ADVANCED

1. THE NGO ‘PEOPLE FOR ENVIRONMENT ’ HAS LOCUS STANDI TO APPROACH

THE SUPREME COURT UNDER ARTICLE 32 OF THE INDICA CONSTITUTION.

It is humbly submitted before this Hon’ble Court that the Writ petition filed by the NGO is
maintainable under Article 32 of the Constitution of Indica.

1.1. The Writ Filed By The Ngo ‘People for Environment ‘Under Article 32 Is Maintainable.

1.2 In the landmark judgment of S. P. Gupta v. Union of India, the Supreme Court of Indica
rightfully relaxed the traditional rule in regard to locus standi for filing writs, according to
which redress could only be availed by a person who has suffered a legal injury1. In case of a
breach of fundamental right of a person or determinate class of persons who are unable to
approach the court due to poverty, helplessness or disability or socially or economically
disadvantaged position, any person can seek judicial redress under Article 32 on behalf of the
person or determinate class of persons.2

1.3. Further, in instances where the public at large is facing legal injury, rigid rules of locus
standi which necessitates a personal legal injury will impede many from moving to the judiciary,
thereby rendering constitutional redressal under article 32 futile. Socio -economic rights such as
right against governmental oppression will benefit from individual action representing a large
number of people.3

1.4. Prof. S. P.Sathe has summarised the extent of jurisdiction of PIL in his book, “PIL may,
therefore, be described as satisfying one or more of the following parameters. These are not
exclusive but merely descriptive where the concerns underlying a petition are not individualist
but are shared widely by a large number of people.

 Where the affected persons belong to the disadvantaged sections of the society (women,
children, bonded labour, unorganised labour etc.).

1
1981 Supp SCC 87
2
Supra
3
Charles Sobraj v.. Supdt. Central Jail, Tihar, New Delhi (1978) 4 SCC 104
  Where judicial law-making is necessary to avoid exploitation (inter-country adoption, the
education of the children of the prostitutes).
 Where judicial intervention is necessary for the protection of the sanctity of democratic
institutions (independence of the judiciary, existence of grievances redressal forums).
 Where administrative decision related to development is harmful to the resources such as
air or water.”4

1.5. These requirements laid down by Prof. S. P. Sathe has been cited in several judgements by
the apex court to determine if the case in hand falls under any of the categories laid down, and if
it is therefore a PIL.

1.6. Thus, PIL is a right provided to the public spirited individual/ group such as an NGO to
voice out the issues faced by the public at large by seeking judicial redressal for the public
injury.

1.7. The human conference on human environment held at Stockholm in 1972 Popularly called
as Magna Carta for human environment warned that the “natural resources of the Earth Including
air, water, land, flora and fauna and especially the representative sample of natural ecosystem
must be safeguarded for the benefit of present and future generations through careful planning or
management as appropriate”. The report on the World Commission on Environment and
Development suggested 22 legal principles for Environmental Protection and sustainable
development. ‘Caring for the Earth 1991’ and ‘Earth Summit’ of 1992 also declared that human
beings are entitled to a healthy and productive life in harmony with nature.

1.8. The Supreme Court in ‘M.C Mehta v. Kamal Nath5, held that our legal system, based on
English common law, includes the public trust doctrine as part of its jurisprudence. The State is
the trustee of all-natural resources which are by nature meant for public use and enjoyment.
Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically
fragile lands. The State as a trustee is under a legal duty to protect natural resources. These
resources meant for public use cannot be converted into private ownership. The Public Trust
Doctrine primarily rests on the principle that certain resources like air, sea, waters and forests
have such a great importance to the people as a whole that it would be wholly unjustified to
4
SP SATHE, JUDICIAL ACTIVISM: THE INDIAN EXPERIENCE 701-79(2001)
5
1997) 1 SCC 388
make them a subject of private ownership. The said resources being a gift of nature, they should
be made freely available to everyone irrespective of the status in life. The Court held that the
doctrine enjoins upon the Government to protect the resources for the enjoyment of the general
public rather than to permit their use for private ownership or commercial purposes. According
to Professor Sax, the Public Trust Doctrine imposes the following restrictions on governmental
authority: three types of restrictions on governmental authority are often thought to be imposed
by the public trust: first, the property subject to the trust must not only be used for a public
purpose, but it must be held available for use by the general public; second, the property may not
be sold, even for a fair cash equivalent; and third the property must be maintained for particular
types of uses.

1.9. The Supreme Court in Vellore Citizens' Welfare Forum v. Union of India6, acknowledged
Precautionary Principle and Polluter Pays Principle as law of the land .The Supreme Court
held that some of the salient principles of Sustainable Development, as culled out from
Brundtland Report and other international documents, are Inter-Generational Equity, Use and
Conservation of Natural Resources, Environmental Protection, the Precautionary Principle,
Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial
Assistance to the developing countries. The Precautionary Principle and The Polluter Pays
Principle are essential features of Sustainable Development. The Precautionary Principle, in the
context of the municipal law, means: environmental measures — by the State Government and
the statutory authorities — must anticipate, prevent and attack the causes of environmental
degradation; where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent environmental
degradation; the onus of proof is on the actor or the developer/industrialist to show that his action
is environmentally benign. The Polluter Pays Principle has been held to be a sound principle by
the Supreme Court and once the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make good the loss caused to any other person by his
activity irrespective of the fact whether he took reasonable care while carrying on his activity.
The rule is premised upon the very nature of the activity carried out. Consequently, the polluting
industries are absolutely liable to compensate for the harm caused by them to villagers in the
affected area, to the soil and to the underground water and hence, they are bound to take all
6
(1996) 5 SCC 647
necessary measures to remove sludge and other pollutants lying in the affected areas. The
Polluter Pays Principle as means that the absolute liability for harm to the environment extends
not only to compensate the victims of pollution but also the cost of restoring the environmental
degradation. Remediation of the damaged environment is part of the process of Sustainable
Development and as such the polluter is liable to pay the cost to the individual sufferers as well
as the cost of reversing the damaged ecology. The Precautionary Principle and the Polluter Pays
Principle have been accepted as part of the law of the land. Article 21 of the Constitution of India
guarantees protection of life and personal liberty.

1.10. The Supreme Court in Karnataka Industrial Areas Development Board v. C.

Kenchappa7 was of the opinion that Sustainable Development Means to maintain Delicate
Balance between Industrialization and Ecology the court held that sustainable development
means “a development which can be sustained by nature with or without mitigation. In other
words, it is to maintain delicate balance between industrialisation and ecology. While
development of industry is essential for the growth of economy, at the same time, the
environment and the ecosystem are required to be protected. The pollution created as a
consequence of development must not exceed the carrying capacity of the ecosystem. In order to
protect sustainable development, it is necessary to implement and enforce some of its main
components and ingredients such as precautionary principle, polluter-pays and public trust
doctrine. The Court directed that, in future, before acquisition of lands for development, the
consequence and adverse impact of development on environment must be properly
comprehended and the lands be acquired for development that they do not gravely impair the
ecology and environment. The court observed that sustainable use of natural resources should
essentially be based on maintaining a balance between development and the ecosystem.
Coordinated efforts of all concerned would be required to solve the problem of ecological crisis
and pollution. Unless we adopt an approach of sustainable use, the problem of environmental
degradation cannot be solved.

1.11. The Supreme Court in Residents Welfare Association v. Union Territory of

Chandigarh, 8 held Legislature, the Executive, and the Policymakers Must Take Note of the
damage to the Environment on Account of Haphazard Developments. The Supreme Court
7
(2006) 6 SCC 371
8
2023 LiveLaw (SC) 24
observed that it is high time that the Legislature, the Executive and the Policy Makers at the
Centre as well as at the State levels take note of the damage to the environment on account of
haphazard developments and take a call to take necessary measures to ensure that the
development does not damage the environment. It is necessary that a proper balance is struck
between sustainable development and environmental protection. The Court appealed to the
Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels to
make necessary provisions for carrying out Environmental Impact Assessment (EIA) studies
before permitting urban development.

1.12. Article 226 of the Constitution of Indus empowers High Courts to issue writs, and Article
226(1) specifies that the power of a High Court shall be throughout the territories in relation to
which it exercises jurisdiction.9 Further, Article 226 (2) states that writs can be issued as long as
the cause of action for the same arises wholly or in part from the territorial jurisdiction of the
High Court in question10.

1.13. In the present case, the order of pollution board is ultra vires, and violates fundamental
rights of public at large, thereby the impugned order is not valid and not immune from Article
226. The NGO ‘ People for Environment’ has approached High Court of Pasoori questioning the
act of pollution board and STPL, both of which have wide ranging consequences on citizens of
Indica at large. The order not only violates the provisions of Environment Protection Act, Forest
Act, Air act and various regulations laid down by the Central Government in pursuant of its
powers, but also Right to Clean Environment guaranteed by Article 21 of Constitution of Indica.
Therefore, as a matter of requirement, the writ should be effectively by Hon’ble High Court of
Pasoori.

Issue 2 Whether obtaining environmental clearance certificate is mandatory under

the Environmental Protection
1.1 Fundamental Principles of Environmental Jurisprudence

Sustainable Development is a process in which development can be sustained for generations. It

means improving the quality of human life while at the same time living in harmony with nature
and maintaining the carrying capacity of the life supporting ecosystem. Development means
increasing the society’s ability to meet human needs. Economic growth is an important

9
INDICA CONSTITUTION ARTICLE 226
10
INDICA CONSTITUTION ARTICLE 226
component but cannot be a goal in itself. The real aim must be to improve the quality of human
existence to ensure people to enjoy long, healthy and fulfilling live

In Kinkri Devi v. State of Himachal Pradesh11 the Himachal Pradesh High Court observed that
if industrial growth sought to be achieved by reckless mining resulting in loss of life, loss of
property, loss of amenities like water supply and creating of ecological imbalance then there may
ultimately be no real economic growth and no real development

In People united for Better Living in Calcutta v. State of West Bengal,12 the Calcutta High
Court observed that it is true that in a developing country there shall have to be developments,
but that developments must be in harmony with the environment. There has to be a proper
balance between the economic growth and environment. So that both can exist without affecting
each other..

The Supreme Court in M.C. Mehta v. Union of India observed that “the development and the
protection of environments are not enemies. If without degrading the environment or minimizing
adverse effects thereupon by applying stringent safeguards, it is possible to carry on development
activity applying the principles of sustainable development, in that eventuality, the development
has to go on because one cannot lose sight of the need for development of industries, projects,
etc. including the need to improve employment opportunities and the generation of revenue. A
balance has to be struck.

1.1.1Assimilatory Principle

Assimilative Capacity Principle: Assimilative capacity principle underlies earlier legal measures
to protect the environment. In 1972, the UN conference on Human Environment was held at
Stockholm which resulted in the adoption of Stockholm Declaration containing 26 principles.
Principles 6 of the Stockholm Declaration contains assimilative capacity principle which
assumes that science could provide the policy makers with the necessary information and means
to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumes
that relevant technical expertise would be available when environmental harm is predicted and
there would be sufficient time to act in order to avoid such harm. The assimilative capacity is
based on the belief that scientific theories are certain and adequate to provide the remedies for
ecological restoration whenever pollution occurs. The principle is built on the foundation of
scientific certainties and adequacies.

1.1.2 Precautionary Principle

In Vellore Citizens Welfare Forum v. Union of India (Tamil Nadu Tanneries Case)13, a

11
AIR 1988 HP 4
12
AIR 1993 Cal 215
13
AIR 1996(5) SCC 647
 The Supreme Court also recognized the Precautionary Principle, which is one of the principles
of sustainable development. It was said that in the context of municipal law, the Precautionary
Principle means : -
(1) Environmental measures – To anticipate, prevent and attack the causes of environmental
degradation.
(2) Lack of scientific enquiry should not be used to postpone measures for prevention of
environmental degradation.
(3) The onus of proof is on the actor, developer or industrialist to show that his action is
environmentally benign.

In A.P. Pollution Control Board v. M.V. Nayudu14, the Supreme Court made a reference to the
Stockholm Declaration and the U.N. General Assembly Resolution on World Charter for Nature,
1982. The principle has recently been extended and quite significantly so, in a case pertaining to
the import of hazardous waste, to include the cost not only of avoiding pollution, but also
remedying the damage. Reference was made to Principles 15 and 16 of the Rio Declaration and
it was said, “The nature and extent of cost and the circumstances in which the principle will
apply may differ from case to case.
1.1.3 Polluter Pays Principle
Polluter Pays Principle (PPP) appeared 1972 in the OECD Guiding Principles Concerning
International Economic Aspects of Environmental Policies (henceforth called OECD Guiding
Principles). The PPP as a guiding principle across countries became necessary because some
countries faced complaints by national firms about rising costs and a loss of international
competitiveness following a national implementation of the PPP within their borders. The OECD
Guiding Principles defines the PPP as an instrument for "... allocating costs of pollution
prevention and control measures".

In Indian Council for Enviro-Legal Action & Ors v. Union of India,15 (Bichhri Village case)
the Supreme Court accepted the Polluter Pays principle. In this case, some chemical factories in
Bichhri (Udaipur District) produced hazardous chemicals like oleum etc
The Supreme Court endorsed the Polluter Pays principle and said, “The Polluter Pays Principle
as interpreted by this Court means that the absolute liability for harm to the environment extends
not only to compensate the victims of pollution but also the cost of restoring the environmental
degradation. Remediation of damaged environment is part of the process of sustainable
development.”
The Supreme Court held that as per the Polluter Pays principle “once the activity carried on is
hazardous or inherently dangerous, the person carrying on such activity is liable to make good
the loss caused to any other person by his activity irrespective of the fact whether he took
reasonable care while carrying on his activity. The rule is premised on the very nature of the
activity carried on.”

14
1994 (3) SCC
15
Supra
In the M.C. Mehta v. Union of India & Ors (Calcutta Tanneries Case)16, the Polluter Pays
principle relating to relocation of industries was applied with a direction to those relocated
industries to pay 25% of the cost of land. Those who did not pay for the cost of land were
directed to be closed. It needs to be mentioned that a strict interpretation of the Polluter Pays
principle requires that the polluter should pay for causing the pollution and consequential costs
for any general deterioration of the environment while another view is that the polluter is only
responsible for paying the costs of pollution control measures. Generally speaking, the polluter
must pay for

• The cost of pollution abatement.

• The cost of environment recovery.
• Compensation costs for victims of damages if any, due to pollution.

1.1.4 Protections provided under the Environment Protection Act

Section 3 of the Environment (Protection) Act, 1986 (Act) empowers the Central Government to
take all such measures to protect and improve the quality of the environment and prevent
pollution.
Section 3(2)(v) of the Act empowers restriction of areas in which any industries, operations or
processes or class of industries, operations or processes shall not be carried out or shall be
carried out subject to certain safeguards.
The EIA notification 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. The EIA notification stipulated
that:
.on and form the date of publication of this notification 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 notification, shall not 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 notification.

Rule 5 of the Environmental (Protection) Rules, 1986 (Rules), the Central Government can
restrict or prohibit the location of industries and carrying on of processes in different areas. Thus,
the Ministry of Environment & Forests, Government of India, under Section 3(2) (v) (1) of the
Act read with Rule 5 (3) (b) of the Rules issued a notification on 14.09.2006 (as amended by the
notification dated 22.08.2013) () directing construction of new projects or activities or expansion
or modernization of existing projects only after prior environmental clearance from the
authorities as prescribed.
17
In Fatima v. Union of India was filed before the Madurai Bench of the Madras High Court
16
Supra
17
.P. (MD) No. 11757 of 2021
The EIA notification of 1994 mandates a prior environmental clearance. The circular
substantially amends or alters the application of the EIA notification of 1994. The mandate of not
commencing a new project or expanding or modernising an existing one unless an environmental
clearance has been obtained stands diluted and is rendered ineffective by the issuance of the
administrative circular dated 14 May 2002. This discussion leads us to the conclusion that the
administrative circular is not a measure protected by Section 3. Hence there was no jurisdictional
bar on the NGT to enquire into its legitimacy or vires. Moreover, the administrative circular is
contrary to the EIA Notification 1994 which has a statutory character. The circular is
unsustainable in law.
Further the MoEF through powers under Environment Protection Act S.O.804(E18).--Whereas, a
draft notification under sub-section (1), and clause (v) of sub-section (2) of Section 3 of the
Environment (Protection) Act, 1986 (29 of 1986) was published in the Gazette of India,
Extraordinary, Part II, Section 3, sub-section (ii), vide number S.O. 1705(E), dated the 10th May,
2016, as required by sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, for
finalising the process for appraisal of projects for grant of Terms of Reference and
Environmental Clearance, which have started the work on site, expanded the production beyond
the limit of environmental clearance or changed the product mix without obtaining prior
environmental clearance under the Environment Impact Assessment Notification, 2006
Now, therefore, in exercise of the powers conferred by sub-section (1) and sub clause (a) of
clause (i) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act,
1986, read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986;
the Central Government hereby directs that the projects or activities or the expansion or
modernisation of existing projects or activities requiring prior environmental clearance under the
Environment Impact Assessment Notification, 2006 entailing capacity addition with change in
process or technology or both undertaken in any part of India without obtaining prior
environmental clearance from the Central Government or by the State Level Environment Impact
Assessment Authority, as the case may be, duly constituted by the Central Government under
sub-section (3) of Section 3 of the said Act, shall be considered a case of violation of the
Environment Impact Assessment Notification, 2006 and will be dealt strictly as per the
procedure specified in the following manner:-

(2) In case the projects or activities requiring prior environmental clearance under Environment
Impact Assessment Notification, 2006 from the concerned Regulatory Authority are brought for
environmental clearance after starting the construction work, or have undertaken expansion,
modernization, and change in product- mix without prior environmental clearance, these projects
shall be treated as cases of violations and in such cases, even Category B projects which are

18
MANU/ENVT/0040/2017
granted environmental clearance by the State Environment Impact Assessment Authority
constituted under sub-section (3) Section 3 of the Environment (Protection) Act, 1986 shall be
appraised for grant of environmental clearance only by the Expert Appraisal Committee and
environmental clearance will be granted at the Central level.

(3) In cases of violation, action will be taken against the project proponent by the respective
State or State Pollution Control Board under the provisions of section 19 of the Environment
(Protection) Act, 1986 and further, no consent to operate or occupancy certificate will be issued
till the project is granted the environmental clearance.

(4) The cases of violation will be appraised by respective sector Expert Appraisal Committees
constituted under subsection (3) of Section 3 of the Environment (Protection) Act, 1986 with a
view to assess that the project has been constructed at a site which under prevailing laws is
permissible and expansion has been done which can be run sustainably under compliance of
environmental norms with adequate environmental safeguards; and in case, where the finding of
the Expert Appraisal Committee is negative, closure of the project will be recommended along
with other actions under the law.

Indian Council for Enviro-Legal Action Vs. Union of India1920to observe that' "there should not
be development at the cost of environment and vice versa, but there should be development while
taking due care and ensuring the protection of the environment". It further noted that "apart
from providing a smooth flow of public goods and services which contribute to the economic
growth, highways also benefit regional development in the country. In the normal course,
impediments should not be created in the matter of National Highways, which provide the much-
needed transportation infrastructure. At the same time, protection of the environment is
important". Thus, the bench held that the exemption provided by the notification dated
22.08.2013 will be rendered redundant if the segmentation as a strategy was allowed for evading
environmental clearance as per the notifications.

1.1.5 Whether Ex Post Facto EC should be granted

In Electro steel Steels Limited v. Union of India MANU/SC/1261/2021, this Court held
83. The Central Government is well within the scope of its powers Under Section 3 of the 1986
Act to issue directions to control and/or prevent pollution including directions for prior
Environmental Clearance before a project is commenced. Such prior Environmental Clearance
is necessarily granted upon examining the impact of the project on the environment. Ex Post

19
(1996)5 SCC 281
20
facto Environmental Clearance should not ordinarily be granted, and certainly not for the
asking.

In Alembic Pharmaceuticals Ltd. Court observed:

“ The concept of an ex post facto EC is in derogation of the fundamental principles of
environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994.
It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to
irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is
alien to environmental jurisprudence is that before the issuance of an EC, the statutory
notification warrants a careful application of mind, besides a study into the likely consequences
of a proposed activity on the environment. An EC can be issued only after various stages of the
decision making process have been completed. Requirements such as conducting a public
hearing, screening, scoping and appraisal are components of the decision-making process which
ensure that the likely impacts of the industrial activity or the expansion of an existing industrial
activity are considered in the decision-making calculus. Allowing for an ex post facto clearance
would essentially condone the operation of industrial activities without the grant of an EC. In
the absence of an EC, there would be no conditions that would safeguard the environment.
Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to
the environment. In either view of the matter, environment law cannot countenance the notion of
an ex post facto clearance. This would be contrary to both the precautionary principle as well as
the need for sustainable development.”
From the above submissions and various regulations it has submitted to this honourable court
that the Ministry of Forest and Environment has given multiple materials and guidelines since
the commencement of the Environment Protection act. The petitioner has deliberately avoided
issuing of EC.
 PRAYER FOR RELIEF

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honorable Court may be pleased to adjudge and declare:

1. To, Uphold the petition filed by the petitioner has maintainable.

2. To, Hold the application of the Petitioner of mandatory environmental clearance and dismiss
the petition of the operation of the respondent’s factory.
3. To, Uphold the constitutional right guaranteed under Article 19(6) under the constitution and
dismiss any claimant of the respondent under Article 19(1)(g) has constitutionally invalid under
the exception guaranteed under Article 19(6).
4. To, Reject the operation of the respondent has constitutionally invalid and dismiss the petition
of the respondents under the Environment Protection Act,1986.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE
COURT MAY DEEM FIT AND APPROPORIATE IN THE INTERESTS OF justice, equity
and good conscience.

All of which is humbly prayed,

COUNSELS FOR THE PETITIONERS.