Environmental Law

Confederation of Real Estate Developers' Associations of India v. Vanashakti

2025 INSC 1326

Facts

Industry associations and affected parties sought review of the May 2025 Vanashakti judgment.
They argued that the decision had overlooked earlier co-equal Supreme Court authorities, particularly:
Electrosteel Steels;
Pahwa Plastics;
other decisions allowing exceptional consideration of violation cases.
They contended that the absolute prohibition could require:
demolition of environmentally compliant structures;
closure of major facilities;
loss of housing and employment;
waste of resources, even where restoration and penalties could achieve better environmental results.
Vanashakti argued that prior EC was foundational and retrospective approval was inherently contrary to EIA.
A three-judge Bench decided the review by a 2:1 majority.

Whether the May 2025 decision was rendered without considering binding or co-equal precedent.
Whether every ex post facto clearance mechanism is legally prohibited.
What limits apply to exceptional regularisation.
Whether the earlier judgment should be recalled.

A judgment may be reviewed where it is per incuriam, meaning rendered without considering directly applicable precedent.
Prior EC remains mandatory.
Exceptional ex post facto consideration:
is not a right;
cannot be routine;
cannot rescue an activity prohibited at that site;
must involve penalties, restoration and rigorous appraisal.
Environmental remedies should be effective and proportionate.
The majority and dissent differed on whether the preventive purpose of EIA permits any retrospective mechanism at all.

The majority found that the May 2025 judgment had not adequately dealt with the reasoning in Electrosteel and Pahwa Plastics.
Those decisions had held that:
prior EC is compulsory;
nevertheless, the Environment Protection Act does not expressly command automatic demolition or closure in every case.
The majority considered an absolute rule capable of producing environmentally wasteful outcomes.
Demolition itself may generate:
debris;
dust;
emissions;
loss of usable resources.
A legally permissible project capable of full compliance might sometimes be better addressed through:
stringent appraisal;
heavy compensation;
restoration;
additional safeguards.
The majority therefore restored a narrow possibility of regularisation.
It did not approve the principle of “pollute first, pay later.”
Deliberate violators could still face refusal, closure and prosecution.
Justice Ujjal Bhuyan dissented.
He considered prior EC inseparable from precaution.
In his view, later clearance allows economic pressure to displace genuine environmental choice and weakens the rule of law.
The disagreement shows that ex post facto EC remains a closely contested area.

By 2:1 majority, the Supreme Court recalled the May 2025 Vanashakti judgment.
The Court restored the legal possibility of exceptional ex post facto consideration under a valid regulatory mechanism.
The majority required:
strict appraisal;
environmental compensation;
restoration;
refusal where the project is intrinsically impermissible;
no automatic entitlement.
The dissent would have retained the complete prohibition.
The current legal position after November 2025 is therefore that prior EC is mandatory, but narrowly controlled exceptional regularisation is not absolutely barred.
Use this case for: the current limited and contested exception permitting strict ex post facto consideration.