The Bombay High Court has quashed the February 2021 Office Memorandum (OM) issued by the Ministry of Environment Forest and Climate Change (MOEFCC), which permitted post facto clearance of projects which had come up in Coastal Regulation Zone (CRZ) in violation of the CRZ Regulations.
A bench of Chief Justice DK Upadhyaya and Justice Amit Borkar observed that the issuance of such an OM was legally impermissible and deserved to be set aside.
The HC passed the judgment in a PIL filed by the NGO Vanashakti, which argued that granting post facto clearances would undermine the legal requirement for prior CRZ clearances and would effectively regularise illegal constructions.
The court, in a detailed order, held that the OM, dated February 19, 2021, contravened the provisions of the CRZ Notification, 2019. The bench emphasised that executive instructions, such as the OM in question, can only supplement statutory rules, not supplant them. Since the CRZ Notification of 2019 requires prior clearance for any projects within the CRZ areas, post facto clearances were not permissible.
The PIL challenged the validity of the OM, which outlined a procedure to regularise projects that had commenced without the requisite prior CRZ clearances. The Union government argued that several state governments had requested post facto clearances for activities that had begun without prior approvals due to inadequate knowledge or regulatory understanding. The OM was issued to provide a mechanism to bring such projects into compliance with environmental laws, aiming to regulate them rather than leaving them unchecked and potentially causing more environmental damage.
However, the court observed that the 2019 CRZ Notification did not contain any provision for post facto clearance, and the OM sought to introduce a framework that contradicted the statutory requirements. The court concluded that the OM could not be sustained as it was non-statutory in nature and conflicted with the CRZ regulations, which mandate prior clearance for all projects within the zone.
