HC strikes down Centre’s clearance of illegal constructions in coastal regulation zones

MUMBAI: The Bombay high court on Tuesday struck down a February 2021 office memorandum (OM) issued by the Ministry of Environment, Forests and Climate Change that regularised illegal constructions in coastal regulation zones (CRZs). The memorandum also prescribed a procedure to grant post-facto clearance to constructions in CRZs that had commenced without getting a clearance.
A division bench of chief justice Devendran Kumara Upadhyaya and justice Amit Borkar said the office memorandum was “legally impermissible” as it contravened the provisions of the CRZ notification issued by the Maharashtra Coastal Zone Management Authority in 2019. The bench noted that the CRZ notification does not contain any provision permitting post-facto clearances.
The court was adjudicating on a petition filed by Mumbai-based NGO Vanashakti through its director Stalin Dayanand. The petition challenged the validity of the environment ministry’s memorandum, contending that CRZ notifications, issued under provisions of the Environment (Protection) Act, 1986, make it mandatory to get a clearance before starting a construction project in coastal regulation zones. Advocate Akash Rebello, representing the petitioner, pointed out that a CRZ notification from 2011 also made it mandatory to get a clearance prior to commencing a construction project.
The central government argued that the concept of post-facto clearance for permissible activities was introduced in a CRZ notification dated March 6, 2018, for requests received up to June 30, 2018. The Centre added that it had issued the memorandum after receiving several requests from state governments to create a mechanism for granting post-facto CRZ clearance for projects that had already started without obtaining necessary permissions, primarily because of a lack of awareness about the regulatory mechanism.
The argument, however, failed to prevail upon the court and it struck down the memorandum, observing that the regulatory CRZ regime does not contain any provision to grant post-facto clearance.