Madras HC stays Union environment ministry notification on builder escape route

The environment ministry had issued a notification on March 14 that provided a one-time opportunity to builders to apply for post facto clearance within six months.

Published: 22nd June 2017 09:16 AM  |   Last Updated: 22nd June 2017 09:50 AM   |  A+A-

Express News Service

CHENNAI: In a big blow to realty industry violators, the Madras High Court struck down a notification by the Union environment ministry that sought to provide a safeguard for project proponents who have not obtained mandatory environment clearance and now seek post facto clearance.

The environment ministry had issued a notification on March 14 that provided a one-time opportunity to builders to apply for post facto clearance within six months. However, the two-member vacation bench comprising of Justice N Kirubakaran and Justice V Parthiban has recently stayed the notification on the grounds that it violates Environment Impact Assessment (EIA) Notification, 2006, and the provision of Environment (Protection) Act, 1986.

A writ petition filed by R Kothandaraman, president of Pondicherry Environment Protection Association, contended that the notification watered down the duty and obligation of the statutory authorities. He questioned the ministry’s powers to issue such a notification, adding that environmental governance will be at the mercy of the project proponents if this was allowed.

But ministry officials argued that it has been receiving applications for projects which have started work or expanded without obtaining prior EC. “Rather than leaving them unregulated, which will be more damaging to the environment, it is essential to establish a process to appraise such cases. The notification is a one-time provision where violators are made to pay adequately for damage caused. We would go for an appeal in Supreme Court,” a top official told Express.

However, the environmentalist alleged this was not the first time the ministry was providing shelter to violators and regularising violations. Previously, the ministry has provided post facto environmental clearance by way of circulars and office memoranda, while the notification is the first statutory notification to offer this protection to violators.

Also, in its landmark judgement in July 2015, the National Green Tribunal had quashed two Office Memoranda (OM) that provided a permanent procedure to grant such clearance. It had imposed 5% of project cost as penalty amounting to `76.192 crore on seven private builders from Tamil Nadu who had impleaded into the case. Now, more builders from across the country are coming forward to implead and are willing to pay the penalty. But the high court order may close this door as well.

Senior advocate Saravana Kumar, who represents some of the violators, said the NGT final order has not been challenged before the high court. “There is some confusion. All the impleading petitions before the NGT are coming up for hearing in July. Builders are in distress not knowing what to do,” he said.
In Tamil Nadu, there are 118 projects that have flouted the environmental norms.

EAC’s first meeting to be held today
The first meeting of Expert Appraisal Committee (EAC) is scheduled to be held on Thursday. MV Ramana Murthy, advisor, Integrated Coastal and Marine Area Management (ICMAM), Chennai, is one of the members of the committee.

As per the agenda, there are nine projects listed for consideration, including two residential projects from Chennai suburbs — Greensville at Sholinganallur promoted by Appaswamy Real Estates and Falling Waters in Perungudi by Ambattur Reality. Surprisingly, as per the ministry website, Terms of References is already issued to SAIL Rourkela Steel Plant, which went ahead with modernisation by adding new 125 TPD sulphuric acid plant in place of old 60 TPD plant without prior clearances. The ToR was issued on June 1, which is a contempt of the Madras High Court order. The conduct of the EAC meeting itself would be contempt of court, petitioner R Kothandaraman told Express.

Past & Present
January 27, 1994: EIA Notification mandating prior environmental clearance issued
November 5, 1998: Circular issued for consideration of post facto clearance for application received until March 31, 1999
December 27, 2000: Fixed deadline for the consideration of application from defaulting units as June 30, 2001
May 14, 2002: Extension of deadline for the consideration of post facto applications up to March 31, 2003. Then, the ministry said no further extension would be given
September 14, 2006: EIA Notification 1994 is replaced by 2006 notification. The same requirement to obtain prior environmental clearance continued
November 16, 2010: Office Memorandum (OM) provides a permanent procedure for the grant of post facto clearance to violators
December 12, 2012: Another OM is issued to regularise violators replacing 2010 OM
June 27, 2013: OM is issued amending para 5 of the OM dated December 12, 2012
July 7, 2015: NGT quashes OM as being contrary to the EIA Notification, 2006 and the Environment (Protection) Act, 1986
May 10, 2016: Draft notification providing for an environmental supplemental plan and procedure for post facto consideration of violators is issued
March 14, 2017: Impugned notification providing a time period of 6 months for violators to apply for environmental clearance is issued

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