Case Note & Summary
Background: The present matter is a review petition arising from the Supreme Court's judgment in Vanashakti v. Union of India, dated 16 May 2025, which held that the 2017 Notification and 2021 Office Memorandum, issued under the Environment (Protection) Act, 1986, were illegal and struck them down. The said instruments provided a mechanism for granting ex post facto environmental clearances to projects that had commenced or expanded without prior statutory clearance. The review petitioner, Confederation of Real Estate Developers of India (CREDAI), along with the Union of India and other stakeholders, seek recall of that judgment. Facts: The Environmental Impact Assessment Notification of 2006, issued under Sections 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of the Environment (Protection) Rules, 1986, mandated prior environmental clearance for specified projects. In 2017, a notification was issued to retrospectively regularize projects that had started work without obtaining prior clearance, by prescribing terms of reference and imposing remediation. The 2021 Office Memorandum, issued pursuant to a National Green Tribunal order, provided a Standard Operating Procedure for handling such violation cases. Several writ petitions were filed challenging these instruments, leading to the Supreme Court’s judgment in Vanashakti, which declared them ultra vires the parent Act and violative of the precautionary principle. The Court directed that even after payment of penalty, project construction must be stopped and demolished if undertaken without clearance. However, the judgment clarified that environmental clearances already granted under the 2017 Notification and 2021 OM would remain unaffected. Legal Issues: The review petition contends that the judgment suffers from an error apparent on the face of the record because it overlooked binding decisions of the Supreme Court in Common Cause v. Union of India, Alembic Pharmaceuticals Limited v. Rohit Prajapati, and Electrosteel Steels Limited v. Union of India, which allegedly held a different view on the permissibility of ex post facto clearances. Additionally, it is argued that later decisions in D. Swamy v. Karnataka State Pollution Control Board and Pahwa Plastics Private Limited v. Dastak NGO, which were not cited, support the validity of such notifications. Arguments: Senior counsel for the review petitioners and the Union of India submitted that specific paragraphs from the earlier judgments were not brought to the notice of the Bench that decided Vanashakti. They emphasized that if the Bench felt that D. Swamy and Pahwa Plastics were inconsistent with the law, it ought to have referred the matter to a larger Bench instead of ignoring them. The Solicitor General highlighted the impact on major projects like SAIL and AIIMS Orissa, which were at advanced stages under the 2021 OM and would suffer irretrievable loss. They argued that the JUR’s interpretation of Section 15 of the EP Act, requiring demolition even after penalty, was contrary to the ratio of the cited precedents. Court’s Analysis and Decision: The record before us is limited to the submissions and the listing of the issues. The judgment itself is yet to provide analysis or a final order, as the text breaks off during the submission phase. Therefore, no decision has been rendered at this stage.
Issue of Consideration
Whether the judgment in Vanashakti v. Union of India is liable to be recalled on the ground that it did not consider binding precedents and thus suffers from error apparent on the face of the record.
Law Points
- ex post facto environmental clearance
- review on ground of error apparent
- judicial discipline
- per incuriam
- overlooked precedents
- effect of Section 15
- Environment (Protection) Act
- delegated legislation validity
