CASE NAME: Confederation of Real Estate Developers of India Credai v/s Vanashakti
CASE NUMBER : Diary No. 41929/2025
COURT: Supreme Court of India
DATE : 18 November 2025
QUORUM: Chief Justice B.R Gavai, Justice K Vinod Chandran, Justice Ujjal Bhuyan
FACTS
The Supreme Court, by 2:1 majority, recalled its judgment in Vanashakti v. Union of India, WP(C). 1394 of 2023 which barred the Union from granting post-facto Environmental Clearances (EC) in future and set aside the previous Office Memoranda and notifications which allowed for the grant of ex-post facto Environmental Clearance for mining projects. This judgement sparked a lot of review petitions being filed by the Union, States, private developers. The Central Government, via the Ministry of Environment, Forest and Climate Change issued a notification in 2017 to provide a process for grant of EC in respect of the projects, which had started the work on site, expanded the production beyond the limit of EC or changed the product mix without obtaining prior EC. It was in Vanashakti v. Union of India, WP(C). 1394 of 2023 the Supreme Court held that the grants of ex-post facto EC were bad in law and therefore were quashed and set aside.
ISSUES
- Whether the Vanashakti judgment was rendered per incuriam for failing to consider binding coordinate-bench decisions permitting limited post-facto ECs.
- Whether ex-post facto ECs are absolutely impermissible under the EP Act, or whether they may be granted in exceptional cases.
- Whether non-consideration of earlier judgments constitutes an “error apparent” warranting review.
LEGAL PROVISIONS
- Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 deals with the power of the Central Government to issue environmental notifications.
- Notification issued on 14th March 2017 by the Ministry of Environment, Forest and Climate Change which provides for the grant of ex-post facto EC, a structured mechanism to evaluate and regularise violation cases.
ARGUMENTS
PETITIONER :
The counsel in support of the review petition contended that relevant paras from the judgments in the cases of Common Cause v. Union of India and Others, (2017) 9 SCC 499, Electrosteel Steels Limited v. Union of India and Others, (2023) 6 SCC 615 were not brought to the notice of this Court when the grant of ex-post facto EC was quashed. Further, the judgements in D. Swamy v. Karnataka State Pollution Control Board and Others, (2023) 20 SCC 469 were also not brought to the notice of this Court. Due to the decision, several projects like SAIL, AIIMS worth crores were affected and will have to be demolished. The notification was issued by exercising the powers conferred by Sec 3 of EP act read with Rule 5 of the EP Rules and this clearly shows that there is no illegality attached to it..
RESPONDENT:
The counsel for the Respondent contended that the review sought a rehearing on merits which is contrary to settled law. Further the counsel relied upon Alembic Pharmaceuticals Ltd v. Rohit Prajapati and Others, (2020) 17 SCC 157 which had ruled that post-facto environmental clearances were bad in law. He pointed out that the Vanshakti judgment merely followed the judgment in Alembic. In Vanshakti judgement, the Court merely restrained the perpetuation of the mischief of granting post-facto ECs through circulars, considering the fact that such post-facto approvals were previously held to be illegal. It was further pointed out that Violators cannot claim hardship after deliberately starting construction without clearance. It was contended that this Hon’ble Court has in several instances held post-facto ECs to be alien to environmental law.
ANALYSIS
Upon considering the arguments advanced and the materials submitted, the Majority judgement recalling the Vanashakti judgement was given by Chief Justice B.R Gavai and Justice K Vinod Chandran whereas the dissenting judgement was given by Justice Ujjal Bhuyan. The Majority judgement was based on the reasoning that though post-facto EC should not be normally granted however, the post-facto ECs has regularised it with a direction to pay monetary penalties. Upon relying on the precedents submitted by the counsel for the petitioner, it was reiterated that post-facto EC can be granted in exceptional cases. EC can be granted only for permissible activities. If EC is held to be invalid, the only course available is to demolish the construction and then to apply for a fresh EC. It was opined that demolition of such a huge number of constructions, rather than reducing pollution, will add to the pollution and will not be in public interest. A pedantic approach first directing demolition and then applying for EC would amount to setting the clock back. The Vanashakti judgment did not take into consideration the powers under the Environment Protection Act. When the prior requirement of EC was brought by the Government itself, the Government has the power to relax it as well. The power to bring in a regulation would also encompass within itself the power to cancel it. The power to relax a requirement cannot be termed totally absurd.
The minority judgement given by Justice Ujjal Bhuyan is based on the reasoning that the earlier precedents have clearly laid down that post-facto EC was impermissible for projects requiring mandatory prior EC. Further it was pointed out that no case is made for review/recall. Any argument that demolition of properties will add to pollution cannot be accepted. Violators cannot advance such an argument to defend their illegalities.
JUDGEMENT
The Supreme Court by a Majority of 2:1 held that the judgement and order dated 16th May 2025 in Vanashakti v. Union of India, WP(C). 1394 of 2023 is recalled. The Registry is directed to place the matter before the Chief Justice of India on the administrative side for obtaining the necessary orders.
In the Dissenting opinion given by Justice Ujjal Bhuyan, the review petition was dismissed.
CONCLUSION
It could be concluded that this judgement is undeniably a landmark precedent where the judiciary has recognised post-facto ECs within the statutory framework of Environmental law. It attempts to uphold environmental protection while avoiding needless demolition of otherwise permissible projects. Most importantly, the Ministry must treat post-facto ECs as exceptional because they are inherently at odds with the legal framework. The dissenting judgement points to the mandatory nature of prior EC and post-facto clearances cannot be permitted.
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WRITTEN BY : AMYUKTA RAJAGOPAL
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