Bombay HC stays post-facto CRZ clearance for projects
The Bombay high court (HC) on Friday stayed a recent office memorandum issued by the Union Ministry of Environment, Forest and Climate Change (MoEFCC), allowing the ex-post facto approval of projects that have not yet obtained coastal regulatory zone (CRZ) clearance under the CRZ Notification, 2011.
The stay was in response to a public interest litigation (PIL) filed by a Mumbai-based environmental group, challenging the constitutional validity of MoEFCC’s direction. The matter has been listed for final hearing on June 30, before a two-judge bench comprising chief justice Dipankar Datta and justice GS Kulkarni.
The impugned office memorandum, dated February 19, and authored by joint secretary of MoEFCC’s CRZ division Sujit Kumar Bajpayee, was also stayed by the Madurai bench of the Madras HC on April 29, in response to a different petition.
MoEFCC’s office memo would have allowed projects – typically permitted as per CRZ, 2011, but did not seek requisite clearances prior to commencement –to become regularised subject to fulfilment of certain conditions.
“Bringing such projects and activities in compliance with the environmental laws at the earliest point of time is therefore essential, rather than leaving them unregulated and unchecked, which will be more damaging to the environment,” Bajpayee had written to the environment secretaries of all coastal states.
“As the project commenced construction and/or operations without a prior CRZ clearance, the respective coastal zone management authority shall assess the environmental damages caused by such an action and shall give specific recommendation in respect of activities, corresponding to the environmental or ecological damage assessed, to be taken up by the project proponent within a period of three years from the date of clearance, under compensatory conservation plan (CCP) and a community resource augmentation plan,” stated MoEFCC’s February 19 office memorandum, which has been reviewed by HT.
“This circular empowers coastal authorities/MoEFCC to regularise all kinds of CRZ violations on a day-to-day basis, making it easier for environmental violators to evade substantive law. It further encourages a “pollute and pay” principle rather than the ‘precautionary principle’. A public interest litigation is filed by Vanashakti on the ground that this circular is arbitrary, wholly unconstitutional and in direct contravention of recent Supreme Court judgments,” said Mumbai-based NGO Vanashakti, at the time of filing their PIL before HC on March 30.
Experts also pointed out while the amended CRZ (2019) notification has come into force, contingent coastal zone management plans (CZMP) as per the same have not yet been finalised. Until such a time, CRZ 2011 rules should remain in force, Vanashakti’s petition clarified, adding that neither notification allows for grant of ‘ex-post facto CRZ clearance’ which the MoEFCC’s office memorandum proposes to facilitate.
HC has also stated that if any permission has been granted or any application has been received for any such CRZ regularisation by a violator since February 2019, then such persons and industries are to be informed of the proceedings stemming from Vanashakti’s PIL.
“All such permissions and applications will be subjected to the outcome of the present PIL,” said Vanashakti’s advocate, Zaman Ali. A copy of the HC order is not yet available. The Madras HC, meanwhile, is set to take up the matter on August 25, in response to a PIL filed by R Fatima of Thoothukudi.