Finally the winter of discontent, and I don’t mean the background to the Cabinet reshuffle, appears to be receding in the light of the green signals emitting from the Ministry of Environment and Forests (MOEF). The announcement of the Coastal Regulation Zones (CRZ) notification was long overdue.
Sometime late last year, the Green Bench of the Supreme Court expre-ssed its dissatisfaction in the open Court , that despite various laws such as the Forest Conservation Act, the Environment Protection Act and the Green Tribunals Bill on the anvil, all projects in trouble were being resolved by the Supreme Court in writ petitions or Intervenor applications filed therein. The Court rightly indicated that its role should only be supervisory and the Executive has to call the shots. And the shots were fired at the high and mighty office bearers of Adarsh Cooperative Housing Society (Adarsh), who had omitted to seek the CRZ permission, which was conveniently overlooked by the local planning authorities, found out when the order of demolition was issued by the MOEF on January 16, 2011. Treating this as a blatant case of violation of the CRZ Notification of 1991, the Authority recommended the removal of the unauthorized structure.
Why indeed was the existing CRZ Notification ineffective, other than bureaucratic lethargy? For one, it provided for the same regulations for the entire Indian coastline, irrespective of the biodiversities, demographic and geological features. There was no clear procedure for obtaining clearances, not even a basic format, no post clearance compliance and monitoring norms, and finally, no deterrent mechanisms for violations. The 2011 Notification seeks to remove these lacunaes by classifying each Zone according to its specific protection requirements, laying down a procedure for project authorities to seek clearance, and identifying the documents that are mandatory for this process. Further, the project management has to submit compliance reports twice a year, and display the same on their websites with full disclosure of their project plans, approvals, notices, prosecutions et al. And finally, no SEZ Projects will be permitted these zones. What will be encouraged are activities which are compatible with the environment and livelihood of the local communities, such as desalination plants and nonconventional energy projects and no Red Category industries.
Coming back to Adarsh, the controversy has been intensified by the order in the Lavasa case, as the Ministry has taken a pragmatic view based on the investments made and third party rights created. Lavasa Corporation Ltd., (LCA), was held to be in violation of the Environment Impact Assessment (EIA) notification, and as site reports of the expert appraisal committee recorded findings of extensive environmental damage, an interim order to stop project activities was passed. LCA, in the current showcause notice, has been spared demolition, subject to payment of a massive penalty, coupled with the creation of an Environmental Restoration Fund and stringent continuing compliances and disclosures. The showcause notice requires LCA to submit details of the project report, construction contracts and audited expenditure statements. LCA, which had unsuccessfully challenged the stop work order before the Bombay High Court, reportedly plans to seek quashing of the showcause notice alleging factual distortions in the findings. Media reports also suggest that Adarsh proposes to assail the discriminatory approach adopted by the MOEF in singling out Adarsh for demolition.
Both issues will have to be determined by the Judiciary, as the Ministry has taken its stand, having considered in the Adarsh case, the options of part demolition and acq-uisition of the development by the Government. In many instances, the Ministry even the Supreme Court have regularised constructions post facto, on payment of penalty and subjected to ongoing and future compliances. While the approach is realistic, in view of the costs and utilisation of resources such Proj-ects involve, apart from the fun-damental aim of ecological preser-vation, Ministries should not be perceived as toothless and the dedicated tribunals not duly empowered There has to be a balanced and reasonable approach with due regard to the nation’s requirements and best interests, in industrial development as well as environmental issues. Both are equally important and this is where the Governmental authorities’ discretion has to be properly exercised, and the reasons for the demolition order being passed in case of Adarsh and not in case of LCA have to justified if tested in the Courts, as being within the powers and jurisdiction of the MOEF and not on the manner in which the project was grafted to gratify some greedy and influential persons who believe that flouting laws is their birthright.
The author is a Partner at Bharucha & Partners, Delhi Office and can be reached at
Email: kumkumsen@bharucha.i
