'Prima Facie Dilutes Environment Act' : Bombay High Court Retrains MoEF from Granting Post-facto CRZ Clearance

In an interim order, a division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni observed that the OM's prima facie dilutes the rigours of the Environmental Act. The OM lays down the procedure for granting post-facto CRZ clearance to industries/agencies that might have commenced construction without prior CRZ clearance and thereby regularising such illegal construction, the order notes.

"In our prima facie view, contents of the Office Memorandum under challenge have the effect of diluting the rigours of the provisions of the Environment Act and other related enactments."

"In such view of the matter, we restrain the respondents from granting any permission/clearance on the basis of the office memorandum under challenge till August 31, 2021, or until further orders, whichever is earlier."

The bench heard a PIL by NGO Vanashakti through its director Stalin Dayanand, challenging the OM issued by MoEF on February 19, 2021. Vanashakti was represented by Senior Advocate Venkatesh Dhond and advocate Zaman Ali, while Additional Solicitor General Anil Singh represented the Centre.

On instructions, ASG submitted that no permission or clearance had been granted for any project after the OM was issued. The bench has directed the MoEF to submit its reply by June 21 and posted the matter for final hearing on June 30 2021.

In its order, the bench refers to SC's decision Alembic Pharmaceutical Limited vs Rohit Prajapati to say that the OM wrongly relies on it. In that case, a division bench comprising Justices D Y Chandrachud and Ajay Rastogi reiterated that the concept of 'ex post facto' Environmental Clearance (EC) is against the fundamental principles of environmental jurisprudence.

"Quite unusual, the Government, despite being bound by the ratio decidendi of such decision, has neglected to follow the directions contained in the said decision which were issued under Article 142 of the Constitution."

The bench asked those applying for fresh clearance to MoEF based on the OM to be informed about the pendency of the petition.

The PIL states that the 2011 CRZ notification does not provide for ex-post-facto clearance. The office memorandum was issued by MoEFCC "without following any procedure under the EP Act." The plea adds that a CRZ nod, always given before a project commences, requires the careful application of mind based on a study into likely consequences of any proposed development on the environment.

The OM has been challenged on the following grounds.

1. The office memorandum is passed without the authority of law and is ultra vires of CRZ 2011 and CRZ 2019 (yet to be enacted). It is an administrative circular that seeks to modify and amend the CRZ without following due process under the Act.

"CRZ 2011 makes it very clear in Regulation 4.2 that CRZ permission is required before any activity undertaken...as it does in Regulation 8(i) of CRZ 2019."

2. The procedure under 5(3) of the Rules not followed. No public notice. "The Impugned OM in effect alters the CRZ Regulations in a manner unknown to law." It is not even an emergency measure, as it's based on a 2014 judgement.

3. The OM is Violative of Article 14 and 21 of the Constitution of India.

"Before the issuance of a CRZ clearance there has to be a careful application of mind based on a study into the likely consequences of a proposed activity on the environment... It is an enquiry that has to be made at a time prior to setting up of the industry to determine if that type of industry can be safely set up in a particular area. In the absence of a permission, there would be no conditions that would safeguard the environment."