{"id":367150,"date":"2025-11-19T13:00:04","date_gmt":"2025-11-19T07:30:04","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=367150"},"modified":"2025-11-24T10:35:14","modified_gmt":"2025-11-24T05:05:14","slug":"ex-post-environmental-clearances-sc-2025-review-vanashakti","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2025\/11\/19\/ex-post-environmental-clearances-sc-2025-review-vanashakti\/","title":{"rendered":"Ex-Post Environmental Clearances: What the Supreme Court’s 2:1 Verdict Says \u2013 Majority v Dissent"},"content":{"rendered":"
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Supreme Court<\/span>: In a petition by Confederation of Real Estate Developers of India (CREDAI) seeking review of the earlier judgment in Vanashakti v. Union of India<\/span>, 2025 SCC OnLine SC 1139<\/a> (Vanashakti<\/span> judgment) which had barred post-facto (ex-post) environmental clearances (ECs), the 3-judge bench of BR Gavai, CJI and K. Vinod Chandran, and Ujjal Bhuyan, JJ, in a 2:1 verdict recalled the Vanashakti<\/span> judgment and has held that retrospective ECs may be granted, but only for “permissible activities”<\/span> as defined in the relevant regulatory framework. Further, these ECs will typically require payment of penalties\/fines. BR Gavai, CJI, and K. Vinod Chandran, JJ formed the majority, while Ujjal Bhuyan, J dissented.<\/p>\n

What was under Review?<\/h3>\n

The Vanashakti judgment<\/span> had barred post-facto ECs, putting certain ongoing or completed projects without prior EC at risk of demolition. CREDAI filed a review petition, arguing that the earlier judgment ignored precedents allowing ex-post ECs in exceptional cases. The petition sought permission for retrospective ECs for projects that are legally permissible.<\/p>\n

Also Read: The Supreme Court on the Ex Post Facto Environment Impact Assessment?<\/a><\/p>\n

Majority Opinion: BR Gavai, CJI & Justice K. Vinod Chandran<\/h3>\n

Effects of Vanashakti<\/span> judgment if not recalled<\/span><\/p>\n

Gavai, CJI<\/span>, noted that in Vanashakti<\/span> judgment , the Court had held that even after the payment of penalty, if the project is under construction, the same has to be stopped and demolished and even if operation has already commenced, the same has to be stopped and demolished.<\/p>\n

He, however, observed that is approach contradicts the framework of the 2017 Notification and the 2021 OM, which allow environmental clearances only for projects that are legally permissible and mandate demolition only where a project is impermissible or cannot be made environmentally sustainable. The 2021 OM, issued pursuant to NGT directions in Tanaji B. Gambhire v. Chief Secretary, Government of Maharashtra<\/span>1<\/sup><\/a>, also imposes substantial penalties for violations.<\/p>\n

He also noted that many government and PSU projects worth thousands of crores, many having completed EIAs and other formalities, could not receive EC due to a stay order of 2 January 2024.<\/p>\n

He, hence, made the following observations on the effects of<\/span> Vanashakti<\/span> judgment if not recalled<\/p>\n

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  1. \n

    Completed or nearly completed public projects worth ₹20,000 crore may need to be demolished, despite being lawful and environmentally assessed. He gave the following examples of affected projects<\/p>\n