Environment Law: Bombay High Court Stays Retrospective Blessing To CRZ Violators

Environment Ministry’s memo dilutes the rigours of the statute, Bombay High Court says. 
The Bombay Stock Exchange (BSE), right, stands behind the Bombay High Court building in Mumbai, India (Photographer: Adeel Halim/Bloomberg)  
The Bombay Stock Exchange (BSE), right, stands behind the Bombay High Court building in Mumbai, India (Photographer: Adeel Halim/Bloomberg)  

The Bombay High Court has stayed a recent office memorandum of the Environment Ministry which had made way for regularisation of illegal projects.

Issued in February this year, the memo enabled regularisation of projects which have commenced without obtaining coastal regulatory zone clearance under the Coastal Regulation Zone Notification, 2011. The memo said such projects can be regularised upon payment of compensation for the damage done during the period of non-compliance.

The interim order was issued by the court in a public interest litigation filed by the non-governmental organisation Vanashakti. The memorandum encourages the “pollute and pay” principle, the NGO argued before the court. It has permitted ex-post facto approval of projects that have not obtained requisite environmental clearances, Vanashakti said.

“None of the notifications, issued under the Environment (Protection) Act, 1986, provide or contemplate an unlimited power to grant ex-post facto CRZ clearance as is being facilitated by the office memorandum, which is at best an administrative circular.”- Vanashakti.

The high court accepted this argument and noted the contents of the office memorandum have the effect of diluting rigours of the provisions of Environment Act and other related enactments.

It also expressed its surprise the government failed to follow the precedent laid down by the Supreme Court in Alembic Pharmaceuticals Ltd.’s case. The concept of “ex post facto” environmental clearance is against the fundamental principles of environment, the apex court had held.

This office memorandum met the same fate before the Madras High Court on April 29, in response to a different petition.

Experts BloombergQuint spoke with said until the matter reaches finality, non-compliant projects in Maharashtra and Tamil Nadu can’t be granted CRZ clearance.

Only if the memorandum survives judicial scrutiny can deserving projects be granted CRZ clearance on merit, Nawneet Vibhaw, environment law partner at Shardul Amarchand Mangaldas & Co., said.

The scrutiny by the courts will ensure anything that dilutes the statutory norms or sets wrong precedents is just not allowed. We’ll have to wait and see if this memorandum falls in that category.
Nawneet Vibhaw, Partner, Shardul Amarchand Mangaldas & Co.

The memo said CRZ clearance would be granted from a future date after assessing environmental damages due to illegal operations in the past by such projects.

Vibhaw said while safeguards are in place, concerns of the activists are also justified and therefore their fears have to be allayed by courts. Judiciary has to ensure this doesn’t become the norm and non-compliance isn’t encouraged in any manner as that would defeat the essence of precautionary principle which is inherent in our law, he said.

The stay order is operative till Aug. 31 and the high court will hear the matter next on June 30.

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